[opiniojuris] Roger Alford: Rawlsian Justifications for Humanitarian Intervention

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Posted by Roger Alford:
Rawlsian Justifications for Humanitarian Intervention
http://www.opiniojuris.org/posts/1189439486.shtml


   I received this interesting email from an LL.M. student in Europe that
   is worth sharing with our readers:
   
     I'd like to thank you for your ... posts concerning philosophy and
     international law.... The combination of these areas is very rare,
     especially in Europe.
     I'm wondering about a few things in your post "[1]Jus Cogens Norms
     and the Historical Accident of Influential States". You posed that
     the Rawlsian original position would accept ius cogens norms
     concerning slave trade and genocide.
     I'm not sure whether it would, considering that the original
     position is meant as an argument of opting into "fair"
     distributions, by means of ones own self-interest (The veil of
     ignorance aims to extend this self interest to an a-historical
     situation). Although in later work, Rawls does seem to make
     concessions to more Kantian and communitarian claims, self-interest
     remains a primary engine of the original position-construct.
     There also lies the key issue with which I'm struggling: universal
     appeal of anything, and thus also ius cogens, seems very far away
     from the Rawlsian distribution theory. It is rather assumed that
     there are rights than that it is defended forâ¦
     So I agree there with your argument that a Rawlsian international
     system would not allow for ad hoc, power-induced "justifications"
     for non-defensive wars. This seems to me to sprout from an analogy
     with the distributive argument, rather than any universal appeal:
     that a state in an original position behind its veil of ignorance
     would choose for an international system, not knowing its position
     in the world, would act against its self-interest to choose for the
     "right-of-the-strongest", as he doesn't know whether he will be the
     strongest.
     This even goes further, as the hegemony of no empire is
     everlasting, it is even without all these veil of ignorances,
     clearly not in the long term interest of a hegemonial state, to act
     according to whatever it pleases.
     Thus I'm wondering to what extent the original position in your
     mind constructs any jus cogens at all.

   Just a few thoughts by way of response. The best statement of Rawls'
   position on international relations is in his book [2]The Law of
   Peoples (1999). Just to highlight two aspects of what Rawls says
   apropos to humanitarian intervention. First, Rawls does not consider
   the original position as an appropriate argument for conceiving the
   basic structure of hierarchical societies. He writes (p. 70):
   
     ... In the case of a decent hierarchical society, there is no
     original position argument deriving the form of its basic
     structure. As it is used in a social contract conception, an
     original position argument for domestic justice is a liberal idea,
     and it does not apply to the domestic justice of a decent
     hierarchical regime.... Only equal parties can be symmetrically
     situated in an original position. Equal peoples, or their
     representatives, are equal parties at the level of the Law of
     Peoples. At another level, it makes sense to think of liberal and
     decent peoples together in an original position when joining
     together into regional associations or federations of some kind,
     such as the European Community.... It is natural to envisage future
     world society as in good part composed of such federations together
     with certain institutions, such as the United Nations, capable of
     speaking for all the societies of the world.

   My sense of what Rawls is saying here is that liberal democratic
   peoples should be equal parties at the level of the Law of Peoples.
   The United Nations struggles with that conception on at least two
   levels: (1) it does not distinguish between liberal democracies and
   other countries, (2) it does not treat all liberal democracies the
   same, particularly with respect to permanent seats on the Security
   Council.
   The second excerpt deals with human rights and outlaw states (p.
   79-81):
   
     Human rights are a class of rights that play a special role in a
     reasonable Law of Peoples: they restrict the justifying reasons for
     war and its conduct, and they specify limits to a regime's internal
     autonomy.... War is no longer an admissible means of government
     policy and is justified only in self-defense, or in grave cases of
     intervention to protect human rights....
     It may be asked by what right well-ordered liberal and decent
     peoples are justified in interfering with an outlaw state on the
     grounds that this state has violated human rights. Comprehensive
     doctrines, religious or nonreligious, might base the idea of human
     rights on a theological, philosophical, or moral conception of the
     nature of the human person. That path the Law of Peoples does not
     follow. What I call human rights are ... a proper subset of the
     rights possessed by citizens in a liberal constitutional democratic
     regime, or of the rights of the members of a decent hierarchical
     society. As we have worked out the Law of Peoples for liberal and
     decent peoples, these peoples simply do not tolerate outlaw states.
     This refusal to tolerate those states is a consequence of
     liberalism and decency.... Liberal and decent peoples have
     extremely good reasons for their attitude. Outlaw states are
     aggressive and dangerous; all peoples are safer and more secure if
     such states change, or are forced to change, their ways. Otherwise
     they deeply affect the international climate of power and violence.

   Under a Rawlsian Law of Peoples, I read this excerpt (1) to allow for
   regime change of outlaw states, (2) to sanction humanitarian
   intervention by liberal democracies, and (3) to reject a moral or
   natural law conception of universal human rights.
   Rawls is making this argument assuming that the Law of Peoples (his
   label for international law) was developed with the conception of
   political liberalism in mind. So he is not saying that humanitarian
   intervention is lawful as international law now stands, but rather
   that if the Law of Peoples was organized with due regard to political
   liberalism, humanitarian intervention would be authorized against
   outlaw states that engage in grave breaches of human rights. Although
   Rawls does not say so explicitly, it seems that he is also saying that
   securing the approval of a special council of states, not all of which
   are liberal democracies, would not be an idealized structure for the
   Law of Peoples.

References

   1. http://www.opiniojuris.org/posts/1156916475.shtml
   2. http://www.amazon.com/Law-Peoples-John-Rawls/dp/0674005422