International Society, Global Polity: An Introduction to International Political Theory, Sintesi del corso di Relazioni Internazionali

Scarica International Society, Global Polity: An Introduction to International Political Theory e più Sintesi del corso in PDF di Relazioni Internazionali solo su Docsity! International Society, Global Polity. An introduction to International Political Theory Chris Brown Introduction For International Relations scholars, their discipline is either a sub-field of contemporary Political Science (the dominant American view) or a cross-disciplinary focus informed by history, philosophy and law (the characteristic British view) but for International Political Theory (IPT), the study of the international is an exercise in Applied Political Philosophy and all three words are important. International Political Theory (IPT) focuses on the normative framework within which international relations takes places. We need to be able to relate notions such as ‘just cause’, ‘right intention’ and ‘proportionality’ to decisions which have been made, and have to be made, on the conflicts of our age. An important issue is the nomenclature. The phrase International Political Theory is only one way of describing the subject matter of this book. Alternatives that are widely employed in the literature include ‘International Ethics’ and ‘Normative International Relations Theory’. ‘International Ethics’, or variants thereof such as ‘Ethics and International Relations’, is a formulation that is quite widely used in book titles and in the context of university courses. The danger here is that an emphasis on ethics is rather limiting because the term ethics is about shaping moral conduct, distinguishing right from wrong and this is too restrictive for what IPT has to offer. More importantantly, there is a danger that defining the subject matter in ethical terms will lead to the error of confusing analysis with advocacy. Such was the error of those Inter-War scholars known as ‘idealists’ or ‘utopians’ because they wanted to bring about a world governed by the rule of law and principles of justice but fell into the trap of behaving as though such a world already existed, which it does not. The key point is that there is a difference between being a scholar and being an advocate. Another term used is ‘Normative International Relations Theory’ which does not have quite so moralising a connotation as International Ethics. However, even though IPT certainly deals with norms, the term ‘normative’ is actually unhelpful. Norms and values permeate human behaviour, and they permeate the behaviour of states but it would certainly be unwise to encourage the idea that there is a clear dividing line between the normative and the positive. The term International Political Theory in the end is the most correct because it invites links to past and present bodies of work that are very much relevant to what we are investigating, and it discourages the idea that the study of International Relations is sui generis, that is, significantly distinct from other areas of the social sciences. States, communities, nations and individuals For the last three centuries, ‘the state’ has been the central unit through which international relations has been conceptualised, but terms like ‘community’ and ‘nation’ have also been used to describe the collectivities whose relationships are at the heart of the matter. More recently, especially since 1945, these collective terms have been joined by the ‘individual’ and the international human rights regime and international criminal law have been central to this development. These four primary units of International Political Theory – state, community, nation, individual – are joined by secondary units, international institutions, governmental and nongovernmental and together, in various combinations, they come together to produce alternative conceptions of how the world works.  The modern state is a territorially based political unit which claims sovereign status, that is to say which recognises no external superior, and no internal equal. The sovereign state became the norm in Europe after the Treaty of Westphalia, whence came the term ‘Westphalia System’ as a convenient description of the European order after 1648.  A community is a social group bound together by a degree of mutual trust, even affection. Communities may be based on actual interactions, in which case they are generally less extensive than the state, or virtual interactions in which case they can be more extensive – consider, for example the Muslim Ummah or community of all believers – or functionally based (the academic community would be a good example here).  A nation is a community that is linked to a territory, whose members believe that they possess inherited qualities that distinguish them from all others. State and nation are very frequently taken as synonymous, perhaps actually run-together as in nation-state. The very term ‘international’ makes this mistake – it was coined (by Jeremy Bentham) at a time when nation and state actually were treated as synonymous, before, that is, nationalism as a political ideology differentiated them. Confusing state and community is a less common mistake in ordinary speech, but one that quite frequently occurs in contemporary political philosophy.  Historically, individuals have only featured as objects of international relations rather than as actors in their own right. Since 1945 this has changed. The Universal Declaration of Human Rights made by the General Assembly of the UN in 1948 was simply the initial stage in the development of a very elaborate international regime for the protection of human rights, giving the individual a standing in international relations not present before that date. The development of International Criminal Law has also worked to the same effect. The relationship of individuals to the three collective bodies, states, communities and nations, forms a large part of the subject matter of contemporary International Political Theory. International society and the global polity For some scholars of International Relations, states are the central actors in world politics, and the way they interact is solely determined by material forces, that is by the interplay of power and interest. These scholars – most obviously self-identified nowadays as ‘structural realists’ – acknowledge that the interactions of states lead to regular patterns of behaviour such that one can talk about an international system. There is no normative component to the international system; from this perspective states may enter into agreements with one another, but such agreements are adhered to only for so long as they remain in the interests of the states who entered into them. There are however other ways of understanding the relations of states; it is possible to conceive of states forming an international society rather than an international system. The notion of an international society is nowadays associated with the so-called ‘English School’, but the term actually has a long history. The notion of a society of states shares much with the notion of an international system, in particular the belief that states are the central actors in world politics; the difference is that the pattern of relationships they create by their interactions is understood to be, at least in part, normatively governed. From this perspective, International law has governing force, it creates genuine obligations, even if these obligations are not always met in full. Norms such as that of diplomatic immunity are binding on all states. Whereas in an international system a balance of power may emerge fortuitously because of the distribution of forces, in an international society the balance of power is recognised as a normatively desirable end which states will adjust their policies to achieve. As we know, not all states regard international law as binding, certainly not all the time, and the norms of international society are quite frequently violated. The notion of a society of states has a history that can be traced back to the political practice and philosophy of the 17th and 18th centuries. It stands as the most readily available alternative to a power- property of the ruler who can do with it what he or she wills. Outsiders have no right to intervene in the conduct of rulers. This new conception not only set in place a very strong doctrine of sovereignty and non- intervention, but, in fact, also highlights the idea that sovereigns should accept each other as equals. Property owners can do as they wish with their property – except in so far as their behaviour impinges on the property rights of other property owners. The claim to own property outright carries with it the logical implication that other property owners also own property outright. Alongside this change was another of equal significance – the development of international law, or, as it was known in the early modern period, the Law of Nations. The ‘Law of Nations’ is a straightforward translation of the Roman ius gentium, but by the 17th century the meaning of these two terms had drifted a long way apart. The Roman Empire was a hotchpotch of territories governed at the level of politics and the individual by Roman law, but at the social and economic level many territories retained this original legal system; ius gentium regulated relations between territories at the level and thus was close to what we now call Private International Law rather than to Public International Law which governs the relations of states. Initially the ‘Salamanca School’ of Spanish jurists, in particular Suarez and Vitoria, developed the Scholastic idea of natural law to respond to the unique problems posed by the conquest of the Americas by Spain. However, they rejected the idea of sovereignty because for them sovereignty rested with God alone. A shift in this idea was achieved by Protestant scholars such as Gentili and Grotius. Vattel is the writer who comes closest to setting out the legal basis of a Society of States in language that is recognisably modern. According to him, the key subjects of the law of nations are states rather than individuals and sovereignty implies sovereign equality. Vattel recognises that even though states have different capacities, they can still claim legal equality. He still links the Law of Nations to Natural Law, but the link is now easily broken, and in a later period, the 19th century, it breaks and the Law of Nations becomes simply something created by states for their own convenience. By then the Law of Nations has been renamed by Jeremy Bentham International Law. The Society of States: Europe and the world The Society of States is a fully operating mode of interaction between states in the 18th century. An interesting shift in the society of states occurred in the 19th century concerning the relations between Europe and the rest of the world. One of the features that held the society of states together was a shared past, European and Christian. With the Reformation, the Christian element of this past was fractured but the basics held fast – Catholics and Protestants differed on much, but held the same core beliefs. In the 18th century when Ottoman power was on a sharp decline, the Sultan made advances towards the club of European sovereigns, but was rebuffed – Europe may not have been labelled Christendom anymore but it was still composed of Christian powers. Relations with the Ottomans were only a small part of Europe’s relations with the rest of the world in the early modern period. This was the age of the conquest of the Americas, and of European expansion into the rest of the non-European world. In the case of the Americas, the Europeans were technologically more advanced than the locals and dominated from the beginning – the picture was much more complex in the East. What is clear is that from the beginning Europeans treated their relations with non-Europeans as different in kind from their relations with each other. The notion of sovereign equality that came to be the defining feature of relations within Europe was never applied outside of the continent. But while these acts of imperialism were taking place, it was also the case that the terms of membership of international society were being rethought. Gradually the key qualification ceases to be being European and Christian, and becomes instead being ‘civilised’. The idea of the ‘standards of civilisation’ is a product of this thinking. The basic idea was that these states would not be treated as equals until they were in possession of the right sort of institutions and attitudes; the key requirements were that they instituted the rule of law, and provided protection for individuals and property. Until such time, these states were subjected to various restrictions, such as external control of customs offices, and extraterritorial jurisdiction over locally based Europeans. The idea of imposing extra-territorial jurisdiction in this way faded in the 20th century but it left behind two important residues. First, it established that sovereignty was not simply a matter of being able to assert the right of non-intervention, but it also involved the positive notion of being capable of self-government. The second point is that still the requirements of the standards of civilisation are not so obviously obnoxious. The clash between universal values and local standards of behaviour carries through into the 20th and 21st centuries in the idea of human rights, which even a strong supporter of the current regime, Jack Donnelly, has termed the new ‘standards of civilisation’. The process by which the conditions for membership of international society move from being European to being civilised paved the way for the expansion of the society of states in the 20th century, and especially after the Second World War with the establishment of the United Nations. Membership of the society of states was no longer to carry a cultural price tag – instead all states were to be understood as members of the new enlarged international society. The English School and the Society of States In the 1950s, the Rockefeller Foundation financed Committees on the theory of international relations on both sides of the Atlantic. On the one side, the American Committee appears to have focused their efforts on a major conference. On the other side, the British Committee met regularly, produced edited collections and developed what became a distinctive approach to International Relations, the English School. The leading lights of the British Committee included the historian Herbert Butterfield, the theologian Donald McKinnon, Martin Wight, Reader of International Relations at the London School of Economics, the military historian Michael Howard and a younger scholar, Hedley Bull, who later made the most important and influential contribution to the committee’s work. The key text produced under the explicit auspices of the British Committee was a collection of essays published in 1966, Diplomatic Investigations. The British Committee writers, especially Bull, became standard bearers for what they called the classical approach, which Bull set out in what is still the single most important text of this school of thought, The Anarchical Society (Bull, 1977). The title perfectly catches the core idea of a society of states – that international anarchy need not be devoid of social rules. This approach was controversial, with critics arguing that it represented a characteristically English take on the ‘two cultures’ with a rejection of the scientific mode of thought. In 1981 the political scientist Roy Jones as part of such a critique named the scholars who followed this tradition the ‘English School’, and the name stuck as a label its adherents were happy to accept. The English School is English only in the sense that it was based in England. The English School stands out as distinctive from the long European tradition of thinking about the international order because this long tradition fell out of favour in the 20th century in continental Europe and in the United States. Continental European thought oscillated between a hard-line power politics (for example, in Nazi Germany and Soviet Russia) and a radical rejection of international society in Western Europe post-1945. The US case is rather different. Wilsonian liberalism post-1918 was actually consistent with a strand of thought on international society but understood itself as a radical critique of the old order; more interesting is the fate of American realism. Post-1945 figures like Hans J. Morgenthau, Arnold Wolfers and John Herz were actually theorists of international society, but the turn to structural realism heralded by Waltz’s Theory of International Politics in 1979 downplayed normative theory, understood international relations in terms of the interplay of objective material forces, and valorised science in a way that the classical American realists specifically rejected. In effect, the English School represents the continuation of a tradition of thought that has been abandoned elsewhere. The English School were very interested in the evolution and expansion of the international society, but they approached the topic from an essentially Eurocentric perspective. From an IPT perspective on cultural diversity, the most interesting English School writer is Edward Keene. He links the formation of a Society of States in Europe explicitly to colonialism outside of Europe, and traces the way in which the notion of toleration of different political orders has interacted with the promotion of civilisation – with both positions coming together in the modern post-1945 political settlement in which self-determination and human rights are uneasy bedfellows. The nature of international society: solidarism and pluralism English School writers agree that there is an international ‘society’ which is, at some level, rule-governed, but disagree as to the normative basis of this international order. Two camps have been created: solidarism and pluralism. ‘Solidarists’ and ‘pluralists’ both draw inspiration from classic English School texts, but in very different ways. The solidarist position is nicely summarised by a statement from Hedley Bull’s Hagey Lectures of 1984, where he describes sovereign governments as ‘local agents of the common good’. The idea here is that government is a necessity for human flourishing, but problems of scale rule out the possibility of a single, universal government and therefore ‘local’ governments are legitimate, and a society of sovereign governments constitutes a rational political order for humanity. But, the telos of the international society is to promote human flourishing, therefore its ultimate referent objects ought to be individual human beings rather than states. This means, for example, that the rights of sovereigns cannot be employed to justify largescale human rights violations. Solidarists have no principled objection to humanitarian intervention. Some solidarist writers are R.J. Vincent, Tim Dunne and Nicholas Wheeler. Wheeler’s work on Saving Strangers is a key solidarist text, perhaps the single most important. On the other hand, pluralist English School theory believes that the point of international society is that it allows different conceptions of the good to flourish. One of the most interesting versions of this position is set out by Terry Nardin. He sees international society as a ‘practical association’ as opposed to a ‘purposive association’. The root idea here is that the purpose of international society, its telos, is to allow states to live together under conditions of peace and justice while following their own conception of the good. Other leading pluralist scholars include Robert Jackson and James Mayall, both of whom are actually more closely associated with the English School than Nardin. In sum, solidarism assumes and valorises the existence of universal values and common notions of the good; pluralism assumes and valorises the existence of different conceptions of the good. Both positions have points in their favour, but both positions also gloss over the fact that many (pessimistically, most) states are not dedicated to any conception of the good whether local or universal. Still, the division between solidarists and pluralists is a useful way of looking at English School writers, especially when issues of intervention are at stake, although it should be noted that not all English School writers fit into one or other category. Conclusion: International society, the English School and modern political theory The English School represents the best that the European tradition of thinking about statecraft can offer in the modern age. The central question though is whether that best is good enough given contemporary conditions. So much of the work of the English school rests on the proposition that culture matters, that the institutions of international society are cultural artefacts created by a particular history, and in so far as this is true, it matters if this history and culture is being experienced at best at second hand. CHAPTER 3 _ War as an institution of international society instrument of state policy. Ius in bello on the other hand, gradually becomes an important focus of international law. Just War thinking played relatively little part of the discourse that surrounded the First and Second World Wars. In the First World War, leading theologians and moral thinkers on both sides declared their cause to be just, and anti-war sentiment was either pacifist in orientation, or based on the socialist principle of opposition to capitalist wars. In the Second World War, things were slightly more complex with different positions and opinions. An interesting account is the one of G.E.M. Anscombe who wrote a pamphlet in 1939 ‘The Justice of the Present War Examined’ in which she argued an anti-war position on what she regarded as Just War grounds – she held that the intentions of the allies were not of the right sort, and that their conduct of the war would inevitably involve harm to innocents. Her position on the Just War was equally absolutist, and in practice, her version of the Just War came close to a pacifist position. The one major figure who did employ Just War categories was the Anglican Bishop of Chichester, George Bell, who was one of the few voices raised in opposition to the area bombing of German cities. Just War thinking revived somewhat during the Cold War in particular because the issue of nuclear weapons and their destructive power gave a degree of urgency to the search for a morally sound basis for evaluating war and the threat of war. Paul Ramsey was one of the first non-Catholic thinkers to return to the Just War tradition. In fact, virtually everyone within the tradition agreed that the use of nuclear weapons would be wrong – the issue became whether it was legitimate to threaten to use a weapon that it would not actually be legitimate to use. The theory of nuclear deterrence rests on the proposition that such threats can keep the peace, especially if both sides have weapons that are not vulnerable to destruction in a pre-emptive strike. When the Second Cold War broke out in the 1980s after a period of détente, a group of Catholic natural lawyers, John Finnis, Joseph Boyle and Germain Grisez produced a substantial text, Nuclear Deterrence, Morality and Realism (1987) which argued from Just War principles that unilateral nuclear disarmament was the right thing to do, even if the consequences were to be the Soviet conquest of Western Europe. Although nuclear weapons and the Cold War more generally stimulated some interest in Just War thinking, it was the American involvement in the Vietnam War which really began the process of reviving the tradition. This involvement developed through the 1960s from a relatively small commitment to the engagement of American armies of over half a million soldiers. Many people in the US believed the war to be misconceived and immoral, and took part in the very large anti-war movement that formed, especially at America’s universities. Some thinkers who responded to this situation opposed the war as pacifists, but others sought instead to discriminate between Vietnam and other wars. Once this sort of discrimination was called for, it was natural that the Just War tradition should come into focus. The result was that political and social philosophers who were not Catholic turned to the tradition for a degree of guidance, and in so doing brought it back into contemporary discourse. The most important of the philosophers was Michael Walzer. Michael Walzer, the Just War and international society The first product of this new emphasis was a self-explanatory collection of essays, Obligations: Essays on Disobedience, War and Citizenship (1970), but by far the most substantial work this new engagement stimulated was Just and Unjust Wars (hereafter J&UJW), which appeared after the end of the Vietnam War. Walzer’s opposition to America’s Vietnam War quite naturally ruled out the adoption of a political realist, Clausewitzian understanding of war as simply an act of policy. However, unlike some other members of the anti-war movement, he did not adopt a pacifist stance, nor did he espouse the ultra-radical position of only supporting so-called revolutionary wars, or wars of national liberation. Instead, he found himself seeking a way of distinguishing those circumstances where inter-state violence might be legitimate and those where it would not be, and this in turn led him to the notion of the Just War. He takes the categories of Just War thinking and removes them from their theological context. The end result is an account of the Just War that is employable by those of all religions, and none. One feature Walzer takes from the modern version of the tradition and reworks is the distinction between ius ad bellam, the justice of resort to war and ius in bello, which deals with right conduct in war. After dealing with realist approaches to war, he sets out ‘The Theory of Aggression’ which presents his version of ius ad bellam. According to him, states have moral standing and are entitled to protect themselves from outside interference, that is, from aggression. States have moral standing as political communities which have rights; these rights rest on the rights of individuals, their capacity to shape their lives and choose their own form of government. It is important to stress that this moral standing is understood as conditional. Walzer’s account of international society rests on an analogy between the rights of states and the rights of individuals. From this analogy he derives what he calls the ‘Legalist paradigm’ which both sets out his current understanding of ius ad bellam in contemporary international law, and, with one or two amendments, provides a morally defensible position which allows us to identify which wars are justified. The Legalist Paradigm has six components: 1) There exists an international society of independent states; 2) This international society has a law that establishes the rights of its members – above all, the rights of territorial integrity and political sovereignty; 3) Any use of force or imminent threat of force by one state against the political sovereignty or territorial integrity of another constitutes aggression and is a criminal act; 4) Aggression justifies two kinds of violent response; a war of self-defence by the victim and a war of law enforcement by the victim and any other member of international society; 5) Nothing but aggression can justify war; 6) Once the aggressor state has been militarily repulsed it can also be punished. With one or two limited exceptions, Walzer holds that the only ‘just cause’ that can be recognized under modern conditions is self-defence. [First, a doctrine of justified pre-emption is required. Aggression is always wrong, but aggression cannot be defined simply in terms of being the first to resort to violence; in some circumstances, where a threat is immediate it may be legitimate to strike first rather than wait for a blow that is certain to be delivered. Pre- emption is recognised as a necessary concept in the laws of war, and, it should be noted, is distinct from prevention which involves acting on a potential threat before it actually emerges; this has become an issue in the twenty-first century, as the Bush Administration’s post-9/11 National Security Doctrine has been accused of blurring the distinction between pre-emption and prevention.] More central to his concerns is the need for a doctrine of permissible intervention, that is to say a doctrine which lays out the circumstances under which intervention does not constitute aggression, circumstances in which the norm of non-intervention, central to the society of states, may be justly breached. Three such circumstances are identified by Walzer. First, when a set of boundaries contain two political communities, one of which is already engaged in a large-scale military struggle for independence; second, when a foreign power has already intervened, and so the case is one of counter-intervention; and third, and most significant, ‘when the violation of human rights within a set of boundaries is so terrible that it makes talk of community or self-determination or “arduous struggle” seem cynical and irrelevant, that is, in cases of enslavement or massacre’. Walzer’s essential position is that political freedom is not something that can be given to people, it can only be taken by them. People are expected to engage in ‘arduous struggle’ against oppressive regimes if they desire freedom – it is only when this is patently impossible that outsiders have any standing in the matter. Slavery and massacre are the examples Walzer offers in the text – and liberal, cosmopolitan critics of the society of states will argue that this is far too restrictive, that intervention should be at least considered if human rights are seriously violated at levels that are less than terrible. In the second half of the book, on what he calls the ‘War Convention’, Walzer addresses ius in bello issues; the core position here relates to the distinction between, and different rights of, combatants and non- combatants. He takes the view that the justice of a war does not affect who might legitimately be killed in it; soldiers are targets whether fighting a war of self-defence or not, and non-combatants should not be targets in any circumstances, although, controversially, he does allow for the possibility that a ‘supreme emergency’ might justify a waiver of this rule were this to be the only way to prevent a great moral disaster. Figures such as James Turner Johnson, Paul Ramsey, Oliver O’Donovan and, later, Jean Bethke Elshtain are much more in tune with the world of Thomas Aquinas and its theological presuppositions. Walzer is, however, the most influential modern proponent of Just War thinking, perhaps precisely because he is somewhat removed from the tradition To recap, he argues that in defending the right of political communities to resist aggression, he is actually defending the rights of the individuals who make up these communities – political communities are worth defending because of the shared understandings and common life they promote, and, crucially, this may be true even if their institutions of government are non-democratic. Walzer naturally hopes that communities will choose democracy, but outsiders are obliged to assume that whatever form of government exists reflects the wishes of the people concerned; even if pro-democracy movements are suppressed, as long as the society has not collapsed into civil war and insurrection it has to be presumed that there is a ‘fit’ between government and people. Short of such a collapse, the only real circumstances in which outsiders would be entitled (although not obliged) to intervene would be in the case of genocide or mass enslavement – in such circumstances the fit between governed and governors has clearly broken down, but otherwise the presumption of international legitimacy must hold, whatever we think of the internal politics of the country in question. This position is compatible with actual international practice – the UN is supposed to be composed of peace-loving peoples, but many of its members are not democracies or, for that matter, particularly peace-loving. Some critics suggest, that Walzer’s defence of the moral standing of states is actually a defence of the moral standing of political communities and that most really-existing states do not map on to such communities. Even where they do, there is no reason to believe that authoritarian, non-democratic governments are there because that is the way the community wishes to be governed. Walzer’s response is that outsiders are not in a position to make that kind of judgement because they do not participate in the common life in question. It should be noted that Walzer has somewhat modified his position in the circumstances of the 1990s and 2000s – in ‘The politics of rescue’ of 1995 (anthologised in Arguing about War, 2005) he widens the range of situations in which intervention might be justifiable, and anticipates a longer engagement with post-intervention politics than was envisaged in his earlier work. His basic position, however, remains unchanged. Conclusion The prevalence of war poses a challenge to the very notion of the society of states, but the Just War tradition has provided some language with which the use of force can be reconciled with the existence of a norm-governed international society. It would be a mistake to think that this resolves the problem – the norms that the Just War tradition mandates are rarely followed in full. CHAPTER 4 _ Human Rights, Humanitarianism and the Society of States Rights, human rights, humanitarianism: basic ideas, terminology and history The simplest way to think of a right is an entitlement that a person has, created by a system of law. The American jurist Wesley Hofeld distinguished between rights (or claim-rights), privileges (or liberty rights), powers and immunities. These various kinds of entitlements all make sense in the context of a functioning legal system, one in which contracts exist and are enforceable thus creating claim-rights and where liberties First, his is an account of justice in a society: the idea is that members of a society gain by social co- operation. That means that the ‘goods’ produced collectively are greater than the sum of the goods the members of society could produce as individuals. For this reason, individuals are prepared to enter society. The justice of the basic institutions of society is determined by the answer to this question, and the answer takes the form of a (fictional) social contract which will cover the rights of individuals and also the disposition of the ‘goods’ created by their co-operation. The choice of the terms of this contract will be made from behind what Rawls calls the veil of ignorance. The idea is that the potential contractors (the individuals) know that they all value certain primary goods, but they will be clueless/ignorant about their own attributes (e.g. their race, intelligence, gender). The assumption is that individuals behind a veil of ignorance will be risk-adverse and will not, for example, choose a system based on slavery if there is the possibility that they themselves will be slaves. He assumes first that people would choose a system with the most extensive equal political liberties available, ruling out slavery or other forms of structural inequality. Economic and social goods are to be distributed according to (i) fair equality of opportunity and (ii) what he calls the difference principle which states that inequalities are just if and only if they work to the advantage of the least advantaged. In his later work, Political Liberalism he wrote that there is no need for agreement on what he calls a ‘comprehensive metaphysical doctrine’ (such as liberalism) for a society based on the principles of justice to be stable as long as there is an overlapping consensus of support for various just principles, arrived at by public reason. The international dimension of Rawls’s thought For Rawls, societies are assumed for the purposes of his theory to be bounded, self-contained and self- sufficient: individuals enter them by birth and leave by death. Of course, Rawls understands that this is not an accurate account of the world but is simply a theoretical assumption which follows necessarily from his contractualism. A social contract needs contractors and Rawls assumes, plausibly enough, that a global contract between individuals would be impossible. Relations between societies are to be determined by a second contract, made by representatives of just societies in a second original position. They would agree, he says, to political principles analogous to political liberty, that is the traditional principles and practices of international society and international law: non-aggression, non-intervention and so on, but not to principles of global distributive or social justice. There would be no international difference principle. The reason he argues thus is because, employing his definition of a society, there is no world or international society – a society is a cooperative scheme for mutual advantage and no such arrangement exists internationally. This means there is no international surplus to distribute, which in turn means that there is no basis for global social justice. Rawls developed an account of The Law of Peoples which elaborates and refines his earlier account, additionally theorising relations between Liberal and non-Liberal peoples and offering some thoughts on non-ideal theory and international relations. According to him, a people have (i) a political structure, a ‘reasonably just constitutional democracy’ in the case of liberal states, (ii) ‘common sympathies’ and (iii) a ‘moral nature’, which requires them to be reasonable as well as rational in the pursuit of their interests. ‘To be reasonable’, for Rawls, is to take account of the interests of others when pursuing one’s own interests, while ‘to be rational’ is simply to engage in a cost benefit calculation which is entirely self-centred. States clearly have political structures, and their populations may share common sympathies, but they do not have a moral nature. Rawls understands the state to be a ‘cold monster’ of calculation. Rawls maintains that representatives of liberal peoples are obliged to create a ‘law of peoples’, which establishes a ‘Confederation of Peoples’. This is based on a set of principles the most important of which involve a commitment to the rule of law and to the abolition of violence within the confederation. Rawls extends membership beyond the category of liberal peoples. He maintains that another category of peoples qualifies for membership, that is, ‘decent’ peoples. Decent peoples are defined as those that respect basic human rights, have some kind of system for consultation or representation, and respect the law of peoples, even though they are based on a non-liberal comprehensive doctrine (for example, a privileged religion) which means that they do not provide the full package of liberal rights (for example, by restricting some positions to believers). Liberal and decent societies are both suitable members of a Confederation of Peoples and subject to the Law of Peoples. These entities exist in the realm of ideal theory, what Rawls calls a realistic utopia that is a world that does not exist but could, a world in which everyone complies with the demands of morality. Then, there are outlaw states which are states that do not respect the rights of their peoples, and do not obey the law of peoples. Liberal and decent peoples must protect themselves from outlaw states, and in extreme conditions may intervene in their domestic affairs. Burdened societies are societies that do not have the human capital, the political culture or, perhaps, the material resources, to be well-ordered. They must be helped to this status by liberal and decent societies, by the promotion of human rights and, possibly, material transfers. Rawls in The Law of Peoples restates the basics of international society in terms of contemporary political theory. He provides criteria for distinguishing between different kinds of non-liberal polities, acknowledging that a stable international order cannot be composed only of liberal societies, and identifying which non- liberal polities it is desirable to tolerate, thereby addressing some of the issues raised by ‘cultural relativists’. Still, there are many problems with the way Rawls sets up his framework and with the answers he gives. Rawls remains committed to a world of separate states. Allen Buchanan believes that Rawls is providing a set of rules for a ‘vanished Westphalian world’. The tradition of understanding international relations in terms of a society of states runs parallel to the tradition of understanding the moral basis of domestic politics as encapsulated by the idea of a social contract – Rawls is, perhaps, the culminating figure of both traditions. CHAPTER 5 _ Challenges to the society of states International law and the society of states In the 19th and 20th centuries attempts were made to find legal solutions to inter-state conflicts that could act as alternatives to war. International arbitration began to take off at the end of the 19th century. In the 20th century the informal movement towards the judicial settlement of disputes was buttressed by the establishment of permanent judicial bodies; the Permanent Court of International Justice was established in 1919 as part of the League of Nations system, and was retained, rebranded as the International Court of Justice (ICJ) as part of the United Nations System after 1945. The ICJ is based at The Hague, and has played an important role in the development of International Law, with 156 cases entered in the General List between the first, in 1947, and the present day (February, 2014). The ICJ is a voluntary system for dispute settlement. There is no way in which states can be forced to employ the Court to resolve their disputes, and even if they do resort to the Court, its judgments are, in effect, unenforceable. This voluntary nature is absolutely central to the nature of International Law, which regulates the relations of states in the absence of an authoritative government or police system. The second key feature of International Law, related to the first, is that it regulates, or attempts to regulate, the relations of states; individuals are the subject of International Law only if their relationship to a state was or is in some respect anomalous (ex. Diplomats). These two features limit the role of International Law in the conduct of international relations, but they are central to the idea that the international order consists of a society of states as opposed to a world society of individuals. Therefore, challenges to these features represent challenges to the society of states itself. Twentieth-century emergence of international criminal law Until the 20th century criminal prosecutions of specific individuals were rare, took place in national courts, and did not involve heads of state or government. They are still rare, but now international tribunals are a possibility and sovereign immunity is somewhat qualified. The change began at the end of the first world war. Examples are the case of Nuremburg which was then followed by a similar Tribunal in Tokyo. The Cold War ended any possibility that these two ad hoc Tribunals would lead to a major change in international criminal law, and the idea of a permanent International Criminal Court, which had been floated in 1945, was put into cold storage. In 1989, at the end of the Cold War, it was brought out again when Trinidad and Tobago requested that consideration be given to establishing an international criminal tribunal. The key conference that established the Statute of the International Criminal Court was held in Rome in June and July 1998. However, the process was interrupted by the creation of two ad hoc Tribunals in response to the conflict in former Yugoslavia, and the genocide in Rwanda. International criminal tribunals The atrocities that were committed in Bosnia and Rwanda shocked the conscience of the world and led to the UN Security Council establishing two International Criminal Tribunals as UN organs with restrictive and time-limited mandates, charged with applying rules of international humanitarian law which were ‘beyond any doubt part of the customary law’, in other words, grave breaches of the Geneva Convention, violations of the laws and customs of war, genocide and crimes against humanity. The International Criminal Tribunal for the Former Yugoslavia (ICTY) was established by the UN Security Council under UNSC Resolution 808 in 1993. The International Criminal Tribunal for Rwanda (ICTR) was established by UN Security Council Resolution 955 in 1994. Both Tribunals are now being wound down. There are two ways to look at these two Tribunals. On the one hand, they could be seen as appropriate responses to horrifying events, expressing the righteous desire that wrongdoers be brought to justice. On the other hand, they could be seen as wholly inadequate responses to atrocity, an attempt by the Security Council to compensate for its failure to respond to these crimes at the time. Beside any moral considerations, still, the two Tribunals contributed substantially to the process of ending impunity for such terrible crimes. The ICTY in particular, with its indictment of leaders such as Miloševic´ and Karadžic´, has sent an important message to those who might commit atrocity crimes in the future. The ICTY has been, on balance, a success, largely because of the economic strength of the European Union – the successor states of the former Yugoslavia have, for the most part, desired to join the EU, and the EU has made it clear that co-operating with the ICTY is a precondition for membership. One positive factor that has come out of the Tribunals is, paradoxically, that their inadequacies as ad hoc tribunals – the slow speed with which they have operated, the possibility of inconsistent judgments, their cost – provided an impetus for the creation of a permanent body. The International Criminal court: Rome conference Between 15 June and 17 July 1998, a Conference of 160 states, 33 International Organisations and literally hundreds of NGOs met in Rome to work on a Statute for an International Criminal Court. The Statute was passed by 120 votes to 7 with 21 abstentions – the vote was unrecorded, but the US, China and Israel announced that they had voted against, and the other opponents were said to be Libya, Iraq, Qatar and Yemen; abstentions included India and a number of Arab countries. The International Criminal Court came into existence when 60 states ratified the Statute on 1 July 2002; to date 118 states have ratified, including the UK and France but no other nuclear power. Only two Middle Eastern states have ratified (Tunisia and Jordan) and many major Asian countries remain outside the Court. The Rome Statute gives the ICC jurisdiction (non-retroactive) over genocide, crimes against humanity, war crimes, and aggression – the humanitarian ends? And how important are motives and intentions? Then, there are legal issues raised by the new humanitarianism. What is the legal basis for intervention by one state in the affairs of another? Are such interventions only legally permissible in response to a Chapter VII Resolution of the UN Security Council? If so, humanitarian concerns are at the mercy of the Permanent Five veto powers in the Council and, given the divisions between these powers, it is unlikely that legal sanction will always be related to need as opposed to political interests? Finally, there are political and practical issues raised by the new humanitarianism. Clearly in the case of humanitarian action political will is crucial, but the factors that might generate such a will are contradictory and difficult to predict. The so-called ‘CNN effect’ produced by journalists in areas of conflict and crisis can easily generate the sentiment ‘something must be done’, but the same television cameras, when they document the effects of intervention, can have the reverse effect. On the one hand, they can show the effects of military intervention on the local civilian population – and there is always ‘collateral damage’ to show – while, on the other, they can show the effect of action on ‘our boys’, the ‘body-bags’ effect. All these issues are posed most starkly by military humanitarian interventions, but they arise in less dramatic forms whenever humanitarianism moves beyond the ICRC principles of neutrality and impartiality. The expansion of the humanitarian sphere, combined with expanded notions of human rights has create a new ‘humanitarian space’, which by its very existence poses a challenge to the society of states, but which is itself challenged by the problems it generates. Conclusion The rapid development of international criminal law, and the new politics of humanitarianism and human rights, taken together, are indicators of a genuine change in the nature of world politics. Alongside the society of states, a global polity may be emerging. Something important is happening, but still the most important word in the last sentence is ‘alongside’; the emerging global polity is not replacing the society of states, rather the two conceptions of world politics exist side by side. This is, predictably, a source of considerable tension. CHAPTER 6 _ The new human rights regime Introduction: the new politics of identity and difference The end of the Cold War, the victory of the West, and the way in which that victory was won, constituted a world-historic moment. The implications for human rights are interesting; one might have thought that a victory for liberal democracy would translate unambiguously into a victory for human rights, but in fact the ending of one kind of politics opened up space for another kind to develop; instead of the politics of class and property, the 1990s saw the emergence, globally and locally, of a politics of identity and difference. Culture and the ‘Asian Values’ debate A convenient entry-point to the new politics of identity and difference is provided by the 1993 UN World Conference on Human Rights held in Vienna. The intention behind this conference was to collect what was widely thought of as the potential human rights dividend that the ending of the Cold War was supposed to bring. This was to be an opportunity to revisit and strengthen the Universal Declaration of 1948. Prior to the Vienna Conference, regional conferences were held in order to collect opinions and clarify options. The Regional Meeting for Asia of the World Conference on Human Rights took place in March 1993 in Bangkok, and produced the ‘Bangkok Declaration’, a short statement which actually came to dominate the Conference in Vienna, and is now seen as foundational for the ‘Asian Values’ debate and the critique of human rights universalism. It begins by enthusiastically endorsing the idea of universal human rights, critiquing double standards and selectivity, and calling for the democratisation of the UN; it goes on to reject the idea of tying human rights to development assistance, to endorse national sovereignty and non- intervention and to stress that all countries have the right to determine their own political system without the use of human rights as an instrument of political pressure. In general, the state is to be seen as the delivery mechanism for human rights. The key point is that the ‘Asians’ who formulated the ‘Asian Values’ position represented a relatively small, but influential, sub-set of Asian states – key were Singapore, Indonesia and Malaysia – and it is interesting that neither India nor China were much involved in the debate. The key feature of this sub-set of Asian states is that they were all, to different degrees, both authoritarian and economically successful. Because of the former, they were concerned by the trend towards ‘democracy promotion’ in Western, especially American, thought; because of the latter – their economic success – they felt themselves under less pressure to roll over in the face of Western influence. The motivation behind the stress in the Bangkok Declaration on the illegitimacy of using political pressure to promote human rights is easy to see, as is the utility of declaring that the form of rule in countries such as Singapore and Indonesia represented the ‘historical, cultural and religious backgrounds’ of those states. Because of these considerations it is often argued that the very notion of Asian Values is no more than a smokescreen for the defence of authoritarian rule, but this is to miss the point. The core case here is that the rights-holder privileged by the international human rights regime is a secular individual whereas the Asian world view privileges religion and the community. In the 1990s the Asian Values controversy was of considerable significance, and it still has some value as a way of indicating that the 1948 version of the characteristics of a rights holder cannot be taken for granted in the way the framers of the Universal Declaration certainly did. The ‘Asians’ behind the Asian Values argument were the so-called ‘baby tigers’, the small(ish) capitalist success stories of the 1980s and 90s – today in Asia we have the ‘Emergent powers’, India and China as contemporary success stories, and neither of these giants are interested in that particular controversy. Both are too big to be much concerned by the use of human rights for political pressure. The Asian Values debate died because the important Asians weren’t interested in keeping it alive. But still, some of the issues raised in Bangkok remain relevant. Self-determination and the right to be different The Bangkok Declaration stressed the importance of sovereignty and self-determination and in so doing they were merely echoing the International Covenant on Civil and Political Rights of 1966, Article 1.1 of which states that ‘All peoples have the right of self-determination. Does the right of self-determination imply a right to be different? If not, how can such a right be meaningful, but if so, what level of difference is compatible with the universality demanded of the human rights regime? For example, should indigenous peoples be obliged to conform to the majority standards of the wider society when these standards conflict with their way of life? The claim here is that there exist group or collective rights, which are not simply an aggregation of individual rights. In the case of indigenous peoples, the claim is that a collective wrong was perpetrated when these peoples were subjected to the rule of outsiders and that the only adequate response to this collective wrong is the recognition of a collective right. In fact, the problem the international human rights regime faces in dealing with indigenous peoples is no more than one manifestation of a much wider problem that exists when any group claims that its practices are legitimate expressions of its identity as a group, irrespective of whether the practices in question contravene majority standards or universal human rights standards. In a world where the politics of identity are increasingly important, the liberal universalism which underlies the international human rights regime is increasingly under threat, and the standard arguments in favour of universal values which went more or less unchallenged during the immediate decades post-1948 now need to be supplemented by other perspectives. Feminist critiques of the international human rights regime The masculine pronoun is used throughout the Universal Declaration of Human Rights to describe the rights-holder, who is assumed to be a male head of the family, which in turn is seen as the ‘natural and fundamental group-unit of society’ (Article 16.3). All this was pretty much standard for the period, and remained so in the mid-1960s when the International Covenants were drafted. However, soon thereafter the influence of the Women’s movement was felt in the international human rights regime as elsewhere in society, or at least Western society, and a decade or so later, in 1979, the Universal Convention on the Elimination of all forms of Discrimination against Women (CEDAW) was signed. Since then there have been a range of other legal and political measures designed to recognise different aspects of the rights of women. Gender has now been mainstreamed as an issue within the international human rights regime. There are now numerous bodies designed to prevent violence towards women, but such violence continues especially in wartime. Still, very slowly progress has been made. Some more radical feminists have argued that the masculinity of the rights-bearers of the international human rights regime represents accurately the world the regime is designed to operate within. This position is perfectly summarised by Catherine MacKinnon’s dictum that ‘human rights principles are based on experience, but not that of women’. MacKinnon’s point is that human rights as classically understood are based on the requirements of active citizenship operating within the public sphere. Historically, this public sphere has been the preserve of men and is to be contrasted to the private sphere which has been the characteristic source of women’s experiences. Rights protect the activity of the citizen in the public sphere, but have not, until very recently, been extended into the private sphere; in the public sphere rights protect the citizen, but in the private sphere women have no protection from the citizen. Some countries have now amended legislation to remove the worst of these abuses, but the process is incomplete, and by no means universal. An interesting account is that of Radhika Coomaramaswamy, a Sri Lankan human rights advocate. In one of her works, she draws on her experience of rights advocacy in the Indian sub-continent and argues that while the language of rights may actually be written into the Indian Constitution it does not have a great deal of purchase at the level of Indian society, where deep-seated practices need to be challenged and where Indian women who deliver this challenge do not draw much sustenance from ideas of non- discrimination. Their need is to be empowered and rights language in this context is not empowering because the wider society does not instinctively think about politics in terms of rights. Coomaramaswamy is a critical supporter of the notion of human rights and her argument is unusual in so far as it brings together the cultural and the gendered critique of rights. On the face of it this ought not to be difficult – the argument is that the typical rights-holder, but atypical human being, is a Western man and both gender and culture are obvious reference points here. Defending and redefining rights: pragmatism and human capabilities The key point is that we should look to refine and perhaps redefine human rights. Two strategies here suggest themselves; one, pragmatism, involves dropping the foundational claims made for rights and understanding them in much more overtly political terms, the other, the human capabilities approach, involves shifting the key term from rights to capabilities. A central figure for the pragmatic approach to human rights is Richard Rorty. He understands human rights as a culture. He argues that rights act to ‘summarise our culturally-influenced intuitions about the right thing to do in various situations’; such summarising generalisations increase ‘the predictability, and thus the power and efficiency, of our institutions, thereby heightening the sense of shared moral identity which brings us together in a moral community’. This formulation relies on being able to identify the referent object of ‘our’ and ‘us’ and for Rorty ‘we’ are the Americans and Europeans who, over the last two centuries, have created a 'human rights culture'. Of course, many people are not part of the ‘we’ that is was set for a three-way civil war. Meanwhile, in Kosovo the majority Albanian population, denied self- government, embarked on a policy of passive resistance to Serbian control. This then was the multi-layered crisis that first Europe and then the wider international community found itself obliged to respond to. Post-1945 decisions on the deconstruction of the old European empires had taken place on the basis of the legal principle of uti possidetis juris which holds that newly formed states should be formed within the borders of the colonies out of which they emerged. The problem is that it contradicts the principle of national self-determination, unless the boundaries of the self-identifying national community are the same as the pre-existing administrative unit. Of the republics of the SFRY only in Slovenia was this coincidence of principles more or less the case. The dilemma was – should recognition of the new states be based on uti possidetis and the old administrative boundaries, or on the principle of national self-determination which would require border changes? In September 1991 the European Community convened a Conference on Yugoslavia at the Hague which set out a number of principles upon which the decision to recognise a breakaway republic would be based, including that there would be no border changes without agreement, minority rights would be guaranteed and irresolvable differences between the republics would be referred to arbitration. These were eminently sensible principles – but they were immediately ignored. In January 1992 Croatia and Slovenia were recognised by the EC. After them came Bosnia-Herzegovina and in May 1992 all three countries were accepted as new members of the United Nations. Thus, UN Security Council Resolution 713 passed in September 1991 applying an arms embargo to the territory of the former Yugoslavia. Similarly, in January 1993 a mediation effort sponsored by the EC and the UN produced the so-called Vance-Owen Plan which envisaged the division of Bosnia-Herzegovina into ten provinces, each effectively self-governing, again over- riding the interests of the recognised government in Sarajevo. Humanitarian war in former Yugoslavia The fighting in Croatia and Bosnia-Herzegovina inevitably led to civilian casualties, refugees and the disruption of normal food production and distribution; the EC and the UN provided what humanitarian relief they could, and in February 1992 the UNSC established a UN Protection Force (UNPROFOR) to provide protection for the relief effort, initially in Croatia, but extended then to Bosnia-Herzegovina and to the new Republic of Macedonia. The humanitarian effort saw itself as non-political, but one of the principles that the Yugoslav and other crises of the 1990s established is that in a war zone it is more or less impossible for humanitarian aid to be given without political consequences. The result was that UNPROFOR frequently found itself attack, usually, but not always from Serbian forces. It was also the case that many of the troops who made up UNPROFOR lacked the kind of ‘attitude’ that made for effective warfighting. This was an advantage for the role of peacekeeping, where the ability to keep one’s temper under difficult circumstances is crucial, but the disadvantage of the ‘soldier as social worker’ model was illustrated in 1995 with the fall of the ‘safe area’ of Srebrenica. The Dutch battalion supposedly protecting Srebrenica did not prevent Bosnians based there from carrying out military actions but, more important, offered no resistance to the Serb forces led by Ratko Mladic´ who took the town, and indeed allowed them to confiscate some of their equipment and the result was a massacre. Srebrenica preceded and partly caused a turning point in the conflict. In August 1995 Croat and Bosnian forces, armed by the US and supported by NATO, launched a successful campaign against the Serbs, resulting in the withdrawal of the latter from some of their conquests. The result was a newfound willingness of the Serbs to come to the conference table; a conference was held under US auspices in Dayton, Ohio in November 1995, and an Accord was finally signed in Paris in December. In principle Bosnia-Herzegovina remained united, but in practice it was, and remains, effectively divided on ethic lines; a NATO-led International Protection Force, IFOR, exists to keep the peace, and a European ‘High Representative’ with his own office was established, effectively in a pro-consular role. The operations in Bosnia-Herzegovina between 1993 and 1995, constitute the first example of what Adam Roberts termed ‘humanitarian war’. This is a difficult term becasue it conveys the notion of war being fought for humanitarian ends. In any event, humanitarian war usually involves the use of air-power to avoid friendly casualties, even though reliance on killing at a distance may not actually be the best way to achieve the humanitarian goal of protecting civilian populations. A key feature of the ‘new humanitarianism’ is the desire to address the underlying causes of humanitarian crises. Whereas the classical notion of humanitarianism would provide relief to the victims of the war in Bosnia whoever they may be, this newer, human-rights based humanitarianism asks who is responsible for the suffering that is taking place – and once the wrongdoer is identified it is a short step to justifying the use of force to rectify the injustice. Pull together this new meaning of humanitarianism and an expanded sense of the legitimate grounds for the use of force, and the possibility of a doctrine of ‘humanitarian intervention’ emerges, and in the light of this doctrine, humanitarian war is no longer the contradiction in terms it might seem to be. The most controversial humanitarian war in the 1990s was the war in Kosovo in 1999, a war that directly followed from the political deals made at Dayton in 1995, which left Miloševic´ in power in Serbia and provided no support for the people of Kosovo. However, this war, precisely because it was so controversial provided the impetus for the emergence of the idea of a ‘responsibility to protect’. The new politics of state failure State failure is not a new problem. In the old society of states, constitutional or political failure left states open to predators and unless they were able to protect themselves, they would disappear. After 1919, change in the norms and practice of 20th century international relations lessened the danger posed by predators. However, the problem of state failure has not gone away. Many of the new states that emerged during the decolonization period were what Robert Jackson has called ‘quasi-states’, states with negative but not positive sovereignty – that is with the protected status of a sovereign state but without the capacity to maintain that status without assistance. These states with weak administrations and insecure social foundations are vulnerable to internal disorder and collapse or external influence, but predation is no longer a legal solution to their failure. Weak or failed states become an international problem. Somalia was formed in 1960 by the fusion of Italian and British colonies; it has the advantage of being mono-ethnic and with a single religion, Islam, but Somali society was, and is, clan based, with five or six major clans. In pre-colonial times, conflict between the clans was endemic, but it was also limited, partly by the weaponry available, partly by compromises negotiated by clan elders. In modern times, both of these limits disappeared. Compromises between the clans became more difficult to negotiate once a modern state was formed. At the end of the 1980s, with the Cold War winding down, the US felt able to pay attention to the poor human rights record of Somalia’s military dictator since 1969, General Mohammed Siyad Barre, and cut off all aid to his regime. The result was a multi-party civil war, the fall of Barre in January 1991, a general collapse of authority, rule by ‘warlords’, widespread banditry, an internal refugee problem, and large-scale hunger caused by crop confiscations and the control of whatever food production was taking place by the warlords. The UN provided food aid in association with NGOs but the warlords’ control of airport and ports gave them the ability to divert aid to their own purposes. A small-scale UN protection force (UNISOM I) was ineffective, but a UN mediator, Mohamed Sahnoun, made some progress working with the clan elders until he was replaced in the summer of 1992. In December 1992, President George H.W. Bush agreed to a US-led operation, Operation ‘Restore Hope’ formally known as UNITAF (Unified Task Force). This heavily armed intervention was the first occasion in which a UN force was inserted without the approval of a host government and for humanitarian reasons – admittedly there was no ‘host government’ at the time but this was still an interesting precedent. Initially the Mogadishu warlord General Aidid was seen as a potential national leader but when it became clear that he was unacceptable to others, fighting broke out again. Attempts to disarm the participants were unsuccessful and in June 24 Pakistani UN peacekeepers were murdered by Aidid’s forces. In July at attempt to capture him led to the deaths of numerous elders of his clan, the Hawiye, and on 3 and 4 October 1993 the so-called ‘Battle of Mogadishu’ saw a fight in which 18 US Rangers were killed, and their bodies displayed in the street – the infamous ‘Black Hawk Down’ incident. Soon after, the US withdrew its forces and the anarchy continued; there is now a government in Somalia supported by the African Union, Ethiopia and the West, but pirates and radical Islamic groups remain disruptive, a reminder that failed states are not only a problem for their own people. There are generic and specific lessons to be drawn from the experience of the international community in Somalia between 1991 and 1993. Poor intelligence and confused mission objectives always lead to problems, and certainly did in this case. But, even if US and UN forces had been better prepared, it is not clear that ‘nation-building’ in the circumstances of a failed state would have been possible because it involves taking sides and picking potential leaders and it is not clear that outsiders are in a position to do this. A decade later these points resonate with the Western experience in Afghanistan and Iraq. In any event dealing with ‘failed states’ at a minimum requires a medium- to long-term commitment and that is difficult to achieve unless vital interests are at stake. The international community and genocide Sadly, mass murder has been a feature of human history, but genocide is a relatively new phenomenon, identified and named by Raphael Lemkin in the middle of the Second World War in response to contemporary reports of the Holocaust, which he linked to the massacre of Armenians in the First World War. Lemkin’s insight was that what linked these two atrocities was that they both involved the organised mass killing of a category of people. An essential feature of a genocide seems to be that it is the product of modern nationalism and (illiberal) democracy. Traditional autocracies wished to dominate and exploit, and murder some in order to terrorise the rest (such was the case with the Japanese massacres in Nanjing), but the aim of a genocide is to eliminate a whole category of people, thereby ‘ethnically cleansing’ territory to make it available for the perpetrators of the crime (as was the case in Tasmania). After 1945, Lemkin led a campaign to establish genocide as a specific crime under international law, and in 1948 the Genocide Convention was adopted. The Convention committed states to ‘prevent and punish’ genocide, but without setting up any kind of mechanism to ensure that this would happen. Article VIV stated that the Convention would apply for ten years initially, then be extended for five years at a time; this has now been amended and the Convention is a permanent part of international law. Still, during the Cold War there was very little interest in the Convention, which was rarely referenced in public discourse. It is the changes that came about at the end of the Cold War which created a context in which the notion of genocide comes to the fore, and in this case it did so in Rwanda in 1994. Pre-colonial Rwanda was a complex, highly organised kingdom composed of two main groups, the ‘Hutu’, approximately 85% of the population, stereotypically negroid and agriculturalist and the ‘Tutsi’ circa 15%, stereotypically Nilotic and pastoralist. Not everyone agrees on the real existence of this supposed physical difference. However, what everyone agrees with is that colonial race theories reinforced and rigidified whatever divisions were actually present; before colonialism the two categories had been only very loosely defined, but the introduction of identity cards by colonialist regimes marked Tutsi or Hutu eliminated such flexibility. The colonists, first German and then Belgium and later a UN Trusteeship, initially privileged the Tutsi as ‘natural leaders’ (i.e. more European in appearance) then, in the 1950s, gradually shifted privileged status to the Hutu as the majority community. Some cosmopolitan writers and lawyers argued that, in effect, only liberal democratic states could be regarded as truly legitimate and thus entitled to the protection of Article 2(7). UN officials such as Dr Francis Deng, and future Secretary-General Kofi Annan were not prepared to take that step, but they did argue for a conception of ‘sovereignty as responsibility’, that is to say for a conception of sovereignty that required of states that they accept responsibility for the well-being of their people and for the protection of their human rights. Such a conception of sovereignty could be seen as having been behind the various interventions that took place in the 1990s, but these interventions were plagued by doubts about the criteria for action and double standards being applied, and by an obvious lack of consensus on the Security Council, especially among the Permanent Five members. Kofi Annan summarised the difficulty as follows: “if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that affect every precept of our common humanity?”. This question formed the starting point for a Canadian Government-sponsored International Commission on Intervention and State Sovereignty (ICISS) established in 2000, and composed of a mixture of politicians, intellectuals and international civil servants drawn from around the world. They they focused on the ‘responsibility to protect’ (sometimes shortened in the language of texting to R2P or, RtoP), which was meant to indicate a much more general obligation towards local populations, to be understood as held in the first instance by the state itself. This responsibility is located initially with the sovereign state, which is enjoined not to commit atrocities or to allow them to be committed, but when the state is unwilling or unable to act to end mass atrocities, the principle of non-intervention must yield to an international responsibility to protect. The responsibilities of the international community are threefold, ranging from prevention of mass atrocities in the first place, via reaction to them when they occur, to an obligation to assist rebuilding after the conflict is ended. The second stage here – reaction – is the most controversial, taking the matter back towards humanitarian intervention, and must, the Commission argues, be seen in the context of these three dimensions. The Commission’s position is that in extreme cases, which they define by conventional just war criteria, that is, just cause, last resort, and proportionality, it may the duty of the international community to act militarily in response to a mass atrocity. The authority to act (the ‘right authority’ to use just war terminology) is granted by the UN Security Council. The ICISS Report was published in 2001. The ICISS Report and the underpinnings of the responsibility to protect The ICISS authors acknowledge that what they were asking for is that ‘the international community change its basic mind-set with respect to mass atrocity from a ‘culture of reaction’ to a ‘culture of prevention’. However, it is not acknowledged that the ‘culture of reaction’ that is criticised is only shared by part of the international community, the part that had in the 1990s supported humanitarian intervention, while another part of the international community, in so far as it had a collective position at all, could be seen as offering a ‘culture of inaction’ rather than a culture of ‘reaction’. Chapter 3 of the ICISS Report, assumes that it would be a good thing if the current ad hoc and unstructured approach to early warning about deadly conflict were to be centralised and concentrated around the UN Headquarters under the general oversight of the Security Council. In the event of prevention failing, the Responsibility to React would also fall to the UN which would oversee the application of targeted sanctions against the offending state, and, in extremis, would authorise the resort to force, strictly in accordance with the criteria established by Just War theory. Chapter 5 gives the UN Responsibility to Rebuild, if necessary through international administration, with a view to eventually re-establishing local ownership. Some writers, Anne Orford in particular, have seen this as a description of an authoritarian international administration legitimated by a political theory that has its roots in a kind of Hobbesian reaction to a time of troubles, with the need for ‘protection’ overriding all the other functions that we might hope an enlightened, democratic, political authority could provide. The rhetorical justification of protecting populations has frequently been used to justify acts of aggression – from Czechoslovakia in 1938 to Crimea in 2014 – and the idea that the right to protect in this way could be transferred to a global executive is not an encouraging thought. Needless to say, others would take a very different position on this exercise of international authority; the point is, however, that Orford’s fears are made groundless by the fact that both of these positions are represented in the Security Council and among the Permanent Five veto-powers. Whereas sometimes the UK and France, and perhaps even the US, might actually be prepared to see the Council acting as this kind of Global Leviathan, bringing peace and order to the world, Russia and China, although not averse to imperialist enterprises on their own account, see the world rather differently, and in this are likely to be joined by at least some of the non-permanent members of the UN Security Council. The aim of the ICISS Report is to answer Kofi Annan’s question – but the terms of the question are such that no satisfactory answer is likely to be forthcoming. In effect, the Commission attempted to produce a doctrine that legitimates intervention in some circumstances, but would not constitute an assault on sovereignty. But the notion it comes up with is actually most likely to be acceptable to those who are perfectly content to envisage an assault on sovereignty in some circumstances, while being largely unacceptable to those of an opposite view. Responsibility to protect: from the world summit 2005 to UNSC1973 In the immediate aftermath of 9/11 the Security Council adopted a wide-ranging series of measures designed to counter terrorist activities, imposing sanctions on organisations and individuals and authorising state operations to the same end. For a short period at least, the Permanent Five on the Security Council were of one mind in respect to this issue at least. Although the ICISS was technically an initiative of the Canadian Government, from the beginning its work was closely linked to the UN. So it was natural that, when the UN Secretary-General established a High- Level Panel on Threats, Challenges and Change in November 2003 in preparation for the UN’s 60th Anniversary World Summit in September 2005, the ICISS Report would play a major part in their thinking. The World Summit Outcome Final Document contained at paragraphs 138–140 much of the language of the ICISS Report. What is missing from this is any reference to the Permanent Five members of the Council establishing a code of conduct that would involve a self-denying ordinance when it came to the casting of vetoes. In effect, although the Document employs the language of responsibility and protection, it actually creates no new legal obligation on the members of the Security Council. In any event, once the notion of a Responsibility to Protect, lite or heavy, was adopted by the UN, predictably a certain amount of institutionalisation of the concept took place. Thus, a Special Adviser to the Secretary General on Responsibility to Protect was appointed in 2008, a position held by Dr Edward Luck until 2012, and to which Dr Jennifer Welsh has recently been appointed, and in 2009 the UN Secretary General presented a report entitled Implementing the Responsibility to Protect. This Report filled out a lot of the detail that had been missed in 2005, and established the notion of ‘three-pillar strategy’ for advancing the agenda mandated by the Heads of State and Government at the Summit. Thus, pillar one, the protection responsibilities of the State; pillar two, international assistance and capacity building; pillar three, timely and decisive response. The result of this activity is that nowadays when humanitarian issues arise, and the possibility of intervention is raised, the language of Responsibility to Protect is routinely employed by at least some of the actors involved – it has been, in effect, mainstreamed in UN discourse. Libya and Syria – success and failure? In the spring of 2011, upheavals took place in a number of Arab countries, beginning in Tunisia and spreading eastwards. In Tunisia and Egypt, the ‘Arab Spring’ was relatively peaceful, but in Libya the regime of Colonel Gaddafi reacted violently to threats to its power, using the army and the police against the people. The regime established control in the capital, Tripoli, but the opposition soon controlled the east of the country, including Libya’s second city, Benghazi; regime forces moved to retake the opposition- controlled areas, committing human rights abuses in the process. On 26 February 2011 the UN Security Council unanimously passed Resolution 1970 condemning human rights abuses, imposing an arms embargo, a travel ban and asset seizures on named regime officials along with other sanctions, also referring the situation to the International Criminal Court. On 17 March 2011, Resolution 1973 passed in the Security Council by 10 votes to 0 with 5 abstentions (Russia, China, Brazil, South Africa and, somewhat strangely, Germany); 1973 reaffirmed the responsibility of the Libyan authorities to protect their civilian population and abide by international humanitarian law but, crucially, also called on member states to take ‘all necessary measures’ (including a no-fly zone, but explicitly excluding a foreign occupation force) to protect civilians and enforce sanctions. On 19 March air-strikes began, and on 31 March NATO took control of the operation. Air-power prevented the fall of Benghazi, but NATO soon interpreted its mandate rather more widely and in effect acted as the air arm of the opposition. In any event, in late August Tripoli fell to the opposition, and on 20 October Gadaffi was captured and killed by opposition forces. The initial reaction was that this was Responsibility to Protect as intended by the ICISS, with action authorised by the Security Council, as a last resort, and in response to a clear threat of a ‘mass atrocity crime’. However, this sense of optimism soon dissipated. The use of airpower to establish a no-fly zone involved a bombing campaign to disarm Gaddafi’s air force and ground-to-air defences, and inevitably the image of Western planes bombing Arab targets – however careful they were to avoid civilian casualties – went down very badly in the Global South. Brazil’s introduction of the notion of ‘Responsibility While Protecting’ in a speech by Brazilian President Dilma Rousseff at the opening of the 66th UN General Assembly in September 2011 reflected this sentiment. Resolution 1973 called for the protection of civilians, and NATO’s official position was that it was prepared to use airpower to prevent both regime and rebel forces from attacking civilians. This was disingenuous – in effect NATO interpreted Resolution 1973 as giving support for regime change, on the principle that getting rid of Gaddafi was the best, perhaps only, way to protect the Libyan people. Russia and China now expressed regret for their acquiescence in the action, and made it clear that in future they would not support such resolutions. On the issue of selectivity, clearly Russia and China were not in favour of further interventions – and have vetoed Resolutions on Syria in 2011, again in 2012 on 4 February, in the latter case being the only two votes cast against a resolution calling on Assad to step down, and yet again in a minority of two on 19 July 2012 – but they, and other critics, have used the double-standards argument to critique the different approaches of the West to events in Libya and, say, Bahrain. The point was made there that the ICISS Report attempted to treat ‘protection’ as something that could be considered in an apolitical manner and that this simply would not do. The fate of Resolution 1973 confirms this diagnosis. The Resolution seems to have been voted for by some members of the Security Council, South Africa in particular, precisely on the basis that it was in some way possible to protect the Libyan people without interfering in the politics of Libya. Once NATO’s air-power had intervened and stabilised the front-line outside Benghazi it would, perhaps, have been possible to think about negotiating a settlement with the regime. That was the South African position, and the African Union delegation led by President Jacob Zuma did indeed gain Gaddafi’s consent to a truce in April 2011 – but the opposition made it a condition that Gaddafi leave the country and the deal fell through. Again, the belief that it is possible to approach the reaction to humanitarian crises in a politically neutral way, such that it is illegitimate to be ‘selective’ in determining where interventions take place is another manifestation of the antipolitical nature of the thinking behind Responsibility to Protect. States, like persons, have projects which they do not abandon simply because the kind of situation where the Responsibility to Protect is invoked is taking place. States do not simply clear their in-trays and abandon all other considerations when faced with gross violations of human rights – even when the atrocities in produce a modern ethics of war and violence, which has even the limited effectiveness of older notions of international humanitarian law. Non-combatant immunity: unlawful combatants One of the main aims of International Humanitarian Law is to protect persons taking no direct part in hostilities (including prisoners of war) – i.e. non-combatant immunity – and to define the rights of combatants. The legal notion of non-combatant immunity is a crude way of translating the moral principle that innocence should not be violated. Nowadays, this principle is sometimes challenged, and its application has become increasingly difficult as the line between combatant and non-combatant has become more blurred. An example is Al Qaeda’s Second Fatwa of 1998 declaring war against Americans which are to be killed not on the basis of their status as combatants or potential combatants, but because they are American or allied to America. Here the distinction between civilian and military is explicitly ignored. Another example is the employment of civilians as so-called ‘human shields’ to protect military installations or to protect actual fighters. But from the point of view of this discussion what is interesting is whether this is actually a case of the misuse of the principle of non-combatant immunity or whether the ‘civilians’ who make up the human shield are, actually, combatants. The problem in all these cases is that the moral language we have doesn’t quite fit the new circumstances of armed conflict in the twenty-first century, and although international humanitarian law can be made to apply in these anomalous cases the fit is very imperfect. Torture and rendition One of the most disturbing features of the Global War on Terror has been the way that prohibitions on torture have been violated by participants on both sides of the ‘war’. This is an area of international law that until the last decade or so was regarded as relatively clear-cut and settled, but the War on Terror changed the situation. In the first place, groups such as Al Qaeda and the Taliban routinely tortured prisoners, and made no secret of that. More disturbing, because more unexpected, was that during the first Bush Administration, the US openly acknowledged that it was using what it called ‘enhanced interrogation techniques’ including waterboarding. Moreover, some persons suspected of terrorist offences were subject to rendition to ‘black sites’ beyond the jurisdiction of the US Constitution or the European Convention on Human Rights, or to third parties. These practices were, of course, intensely controversial. The US Administration for a time held that these practices did not amount to torture because they did not cause lasting physical damage and they added that these practices extracted information that could not be achieved in any other way and that lives would be saved thereby. Is there actually any evidence that ‘enhanced interrogation techniques’ (EITs) have produced the goods, that is actually prevented terrorist attacks or led to the capture or killing of terrorists? The aim of EITs was to break the will to resist of prisoners, to get them to co-operate in general terms rather than to extract specific nuggets of information. Specific pieces of information might actually emerge in this way as a by-product of the process rather than as its direct aim. A stock question in applied ethics is based on the ‘ticking bomb scenario’; suppose it were known with certainty that a bomb was planted in the city which would explode in a few hours and that the only way in which this bomb could be found would be by extracting the information from the person who placed it – would torture then be justified? Some argue that the scenario is wholly artificial but, in any event, torture is not justifiable. Others argue instead that torture would be justified in such circumstances. The term ‘dirty hands’ has been articulated by Michael Walzer in an article. He argues that sometimes a person in a position of authority may find that the exercise of that authority requires them to get their hands dirty by doing something that they acknowledge breaks the moral code. Paradoxically, doing something wrong might be the right thing to do, all things considered. Walzer is clear that a ‘dirty hands’ argument can only be made in extreme cases, but also that individuals who get their hands dirty in this way must be prepared to answer for what they have done in a court of law or in the court of public opinion. Targeted killing and drone warfare Drones (more properly, Unmanned Aerial Vehicles, UAVs) can be used for surveillance, and targeted assassinations can be carried out by manned warplanes or special forces. So-called ‘signature strikes’ have also been conducted (during the War on Terror under Obama’s administration), in which groups of individuals who are suspected of being Taliban or Al Qaeda operatives are targeted. Drone strikes put a great deal of psychological stress on their operators, but do not put the lives of US servicemen at risk. The legality of drone strikes in countries with which the US is not at war has been challenged, as has been the extra-judicial killing of at least one American citizen. Can a policy of targeted assassination be seen as consistent with the just conduct of the War on Terror? And, does the pursuit of this policy via drone strikes affect our judgement in this case? Picking up the latter point first, the reliance on drones represents the latest version of the US desire to fight zero-casualty wars. Part of the problem is that it is difficult to tell who is, or is not, a civilian in many of the contexts in which drones are used. However, there is another consideration here, which is that the training of at least the CIA drone pilots may not put as much stress on the laws of war as does that of regular air-force personnel. There is already something intuitively distasteful about the idea of killing without at least some risk of being killed, and this is somehow magnified when the ‘killer’ is sitting in a darkened room two continents away. The impersonality of drone warfare and also of long-distance cruise missile strikes, is an issue, and not just because the sense that such killings are ‘unfair’ acts as a driver for recruitment to terrorist groups. And this will become an even more pressing issue in the not too distant future when drones are replaced or supplemented by ‘robots’ – Autonomous Unmanned Aerial Vehicles – that is to say when the machines themselves are programmed to make the decision to kill. However subtle and sophisticated the programming, the use of robots will increase exponentially the sense of revulsion that the use of drones already clearly generates. Still, it is clear that the use of drones will continue, and it is also clear that it will become more widespread. Historically, International Humanitarian Law has operated on the principle that combatants are essentially anonymous. The principle of anonymity is also tied up with the idea of the moral equality of combatants, the idea that whatever the rights and wrongs of a war, the individuals who wear a uniform are to have equal moral standing, assuming, of course, that their behaviour is not such that they lose this status by e.g. committing war crimes. Obviously neither terrorists in general, nor their leaders in particular, wear distinctive uniforms or symbols that could convey anonymity; nor do they usually operate in the kind of context where direct contact between opposing forces is routine and where informal patterns of behaviour can thus emerge. On the other hand, they equally obviously carry out or order acts which are contrary to the laws of war, ignoring the requirement to discriminate amongst targets. In all these respects, they resemble members of a criminal gang rather than an army which is one of the reasons why critics of the war on terror dislike the term and think it should be replaced by one that points towards the model of law enforcement rather than war fighting. In short, the War on Terror is neither a ‘war’ in the conventional sense nor a police operation. It is mostly fought not in a conventional war zone, nor in a zone of peace of the sort that might be found in relatively well-ordered societies adhering roughly to the rule of law, but rather in a kind of intermediate zone, neither of peace nor of war. The moral demand should be that when killing takes place it should be on the basis of very good evidence as to the standing of the proposed victim, that civilian casualties should be avoided (difficult though that is when the status of non-combatant is so difficult to define) and that the wider political context should be taken into account, in other words the benefit from the operation should exceed potential political costs in terms of local support. Such a position would not satisfy those critics for whom any use of the tactic of targeted killing is illegitimate, but it would represent the best fit with the principle that the War on Terror should be fought justly. Surveillance, security and civil liberty Does terrorism pose an existential threat to Western societies? At the most obvious, material, level the answer to this question is, no. On the other hand, existential threats are not necessarily to be defined quite so literally, as threats to one’s physical existence; threats to a way of life as opposed to life itself are equally existential. There is, however, a further point, well expressed by Philip Bobbitt who argues that the real existential threat posed by terrorism is that Western societies will find themselves obliged to change their nature in order to combat terrorism, that the very freedoms that define the West will be sacrificed as a result of the demands of an effective antiterrorism policy, undermining the legitimacy of Western governments. Followers of Carl Schmitt make a similar point arguing that the War on Terror forms the basis for a permanent ‘state of exception’ in which the normal processes of government are suspended, supposedly in the interests of national security. Responding to this danger, in 2009 President Obama rejected as ‘false the choice between our safety and our ideals’ but for some critics the revelations about the level of surveillance conducted by the National Security Agency (NSA) and its foreign affiliates suggests that under his Administration our ideals have indeed been compromised putatively in the interests of our security, and Bobbitt’s fears have come to pass. For these critics, Edward Snowden, the former analyst who has made it his mission to reveal the activities of the NSA, and his predecessor the serviceman Bradley (now Chelsea) Manning, who provided the vast quantities of diplomatic and military information disseminated by Wikileaks, are heroic ‘whistle-blowers’ acting in the public interest, rather than the criminals that the current Administration believes them to be. It is clear that the critique of US surveillance and data collection policy has struck a chord with public opinion in a way that earlier critiques of the conduct of the war on terror have not. Even if all the programmes run by the NSA are wholly within the law they still raise serious issues about the conduct of the War on Terror. This is an area where the desire to see a grey world in black and white terms is very strong, but ultimately unsustainable. It seems probable that some elements of the surveillance and data- collection programmes run by NSA will be scaled back, but it is unlikely they will be eliminated altogether. Just war thinking and modern warfare The nature of war has changed almost beyond recognition over the last quarter century. Overall, the incidence of war, however defined, has fallen, and most of those wars that do take place are either civil wars or asymmetric conflicts. Dramatic though these changes in the nature of war may have been, the Just War tradition is well placed to cope with the shift in mind-set required to understand what is going on. According to Walzer, his account of the legalist paradigm and the ‘war convention’ are difficult to apply when the zones of peace and war are not clearly defined. Other scholars of the Just War have had little difficulty applying Just War categories to modern conflicts. There have always been those who have argued that Just War thinking actually encourages violence. The most serious of such enemies is perhaps Carl Schmitt, whose position is that to describe a war as ‘just’ encourages a self-righteous fury which will demonise the enemy and stand in the way of establishing limits in warfare. Schmitt clearly cannot accept the notion that war can only be waged for a just cause, and for that reason he is right to see his approach as incompatible with the tradition, but he is wrong to think that just war thinking automatically leads to the demonising of enemies and the end of restraint. In summary, although clearly some of the rhetoric of the War on Terror has encouraged the kind of Manichean thinking criticised by Schmitt, Just War thinking, properly understood, should tell against such extremism. However, over the last two decades or so, what it means to ‘properly understand’ Just War culture that is crucial, and therefore aid should be directed towards developing the right kind of institutions rather than necessarily involving material transfers of any substantial kind. What is the relative importance of internal as opposed to external factors when it comes to an assessment of the causes of poverty? Rawls assumes that internal factors are crucial and that given the right institutions and attitudes serious deprivation would become a thing of the past. Is this right? Whether the existing global economic institutions are part of the problem of global poverty, or part of the solution? One response to Rawls’s notion of ‘burdened’ societies is that these societies are not burdened by their own failings but are burdened by the effect of past and present global institutions and policies, from the institutions of formal imperialism through to those of contemporary neo-liberalism. Again, is this right? Writers such as William Easterly provide provocative accounts of the ineffectiveness of aid programmes. On the other hand, writers such as Jeffrey Sachs argue strongly that, designed in the right way, development aid and investment from the West is needed to end poverty and can deliver the goods. Again there are many critics of the current global economic institutional order, but equally many supporters. As this brief summary suggests, this is a very complex situation with no easy answers. Still, it seems safe to assume that in some circumstances aid can be at least minimally effective, and that, whatever the importance of internal factors, to at least some extent international factors are important as well. Global justice I The last forty years has seen a slew of theories of global justice by writers such as Chris Armstrong, Brian Barry, Charles Beitz, Gillian Brock, Simon Caney, Mathias Risse, Thomas Pogge and Kok-Chor Tan which vary quite considerably in the arguments they deploy, but which are united in their view that the way in which Rawls sets up the argument here is fundamentally misconceived. There are two distinct positions here; the first is that Rawls’s basic approach is correct, but that he misunderstands the implications of his own theory; the second is that the perverse result of the international application of Rawls’s principles indicates that there is something wrong with those principles. The most well-established versions of the first argument are those of Thomas Pogge and Charles Beitz, both of whom want to preserve Rawls’s basic model; the fullest version of the second position is that of Brian Barry, who, while working under the shadow of Rawls argues that the problem is more fundamental than Beitz or Pogge will allow. Both Beitz and Pogge argue that Rawls is wrong to assume for the purpose of his theory that societies are bounded and self-contained; this might once have made a certain kind of sense, but no longer reflects the reality of complex interdependence. In Beitz’s 1979 version of this argument, the reality of interdependence mandates that there should be a global difference principle; global inequalities can be accepted as just only if they work to the advantage of the least advantaged. There is no justification for two different contracts, one within a society, and one between societies, because there is in reality only one global society. In this form, it has to be said that this is not a very good argument; global interdependence does not necessarily create a world which can plausibly be seen as a co-operative scheme for mutual advantage. Beitz in a later paper acknowledged that the idea of a global difference principle was non- viable, basing his cosmopolitanism instead on more straightforward Kantian lines. Pogge’s cosmopolitan revision of Rawls was rather more coherent. He argues that the contractarian logic of Rawls’s position requires that there be a kind of meta-contract in which all persons decide upon the nature of the issues that they are prepared to allow to be decided at the state as opposed to the global level. The self-contained nature of schemes of co-operation is not something that ought to be assumed; instead this is a matter that should be subject to contractual agreement. Both Pogge and Beitz believe that Rawls’s explicit rejection of cosmopolitanism is actually inconsistent with the premises of his theory. Both writers recognise that a ‘universal republic’ is not on the cards, but it must be questioned whether moral cosmopolitanism is actually enough to bring about the changes that Pogge at least believes to be necessary. More plausibly, Beitz argues, contractors in the second, international contract, would plump for an egalitarian distribution of natural resources, to be achieved by some scheme of global taxation. On purely normative grounds this is a solid argument, but it is one that could have perverse effects and operationalising the notion presents difficulty. Global justice II The modified Rawlsian approach of Pogge and Beitz contrasts somewhat with the approach to global justice of those who reject the central apparatus with which Rawls approaches the problem, and who are unhappy with Rawls’s notion of ‘justice as fairness’. A central figure here is Brian Barry, who regards justice as fairness as giving far too much weight to mutual advantage. The problem with mutual advantage as a basis for a social contract is that it assumes that all those who come to the table have something to offer which entitles them to be a contracting party, and this will exclude various people. Barry proposes an alternative formula, ‘justice as impartiality’ which he bases on principles established by Thomas Scanlon. He puts a lot of weight on motivation and reasonableness which are often neglected. Most people want to think that their judgements on matters of right and wrong are defensible and so are motivated to seek agreement on them, but it would be foolish to expect that everyone will be so motivated. Some people who possess privileges may simply wish to defend them, and it is foolish to think that they can be reasoned out of this position. Justice may sometimes involve coercion. Reasonableness plays a key role, and what is deemed reasonable is to be determined partly by engaging in thought experiments such as Rawls’s ‘veil of ignorance’ but also by invoking general principles. Having established a method, the aim is to find impartial principles: in this respect it is important to distinguish between ‘first order’ and ‘second order’ impartiality. The former means essentially equal treatment for all, the latter allows for differential treatment but only if the reasons for distinguishing between individuals apply to all. Barry himself examined the international dimension of justice and suggests that three principles can be established as reasonable at the international as well as the domestic level; first, is ‘the presumption of equality’; second, the notion of ‘personal responsibility and compensation’ which covers departures from equality which are the result of decisions freely taken by individuals; and third, and in this context most importantly ‘the priority of vital interests’, which he elaborates as the principle that ‘in the absence of some compelling consideration to the contrary, the vital interests of each person should be protected in preference to the non-vital interests of anyone’. The second principle, individual responsibility, offers scope for quite wide variation once the vital interests of all are met. What is interesting here is that Barry, Rawls and Singer end up more or less in the same place, though they have arrived there by very different routes. What it may also suggest is that a general theory of global justice can take us only so far down the road towards solving the problem of global poverty and inequality, and that what is needed is more attention to particular problems and the operation of particular institutions, and this is indeed the way in which the discourse on global inequality has actually developed. Whereas the work examined so far in this chapter has its origins in debates of the 1970s and 1980s, in the last decade or so the discourse has taken a somewhat different slant. Global institutional reform Most of the writers we have looked at so far in this chapter are ‘moral cosmopolitans’ in Thomas Pogge’s terms, including in such works as Rawls, Pogge himself, but in the last decade or so the emphasis of global justice theorists has shifted towards institutional reform. One of the most creative writers in this respect is Pogge himself and Simon Caney. To recapitulate, Pogge is a Post-Rawlsian justice theorist – he holds that Rawls’s Theory of Justice is on the right lines, but is wrong to simply assume the existence of separate societies. Such a global original position would, he assumes, support global responsibilities even if separate societies were chosen as the mechanism by which they were met; this position underlies World Poverty and Human Rights. What is distinctive in his approach to this issue is, first, his understanding that coping with world poverty should be seen as an issue of negative duties rather than positive duties, and, second, his proposal of institutional reform to remedy the situation. According to him, a negative duty is a duty ‘to ensure that others are not unduly harmed [or wronged] through one’s conduct’, a positive duty is instead a ‘duty to benefit persons or to shield them from other harms’. Pogge argues that we have negative as well as positive duties to the poor; these negative duties stem from the fact that we actively contribute to global poverty via the injustices embedded in the global economic system. Are the current global international economic institutions part of the problem or part of the solution? Pogge has no doubt that the former is the case – we in the West benefit from global institutions which have been imposed on the global South as a result of a common and violent history. The West called the shots in the past via formal imperialism, nowadays it uses more subtle techniques. The standard rules and norms of the world economy are instrumental in allowing illegitimate regimes to oppress their populations. First, such oppressive governments are allowed to borrow money from global institutions and to mortgage the natural resources that their country possesses. These ‘borrowing’ and ‘resource’ privileges enable oppressive regimes to stay in business, and since the debts so produced are regarded as incurred by the country in question they will burden and handicap successor democratic regimes. Moreover, the WTO forces open the markets of poor countries but allows rich country markets to stay protected, thereby denying the benefits of free trade to the poor. Concerning the proposals for reform made by Pogge, these fall into three sets, concerned with democracy, sovereignty and redistribution. As to democracy, the basic idea is that democratising states should be protected from authoritarian predators by setting up institutional arrangements that prevent such predators from enjoying the aforementioned borrowing and resource privileges. The key institutional reform proposed is that a Democracy Panel should be created to judge when a democracy has been undermined by such predators. Contracts signed by regimes judged not to be democratic should have no legal binding force on subsequent regimes; this would make international lenders and multinationals reluctant to enter into agreements with non-democratic regimes, which in turn would reduce dramatically the resources available to such regimes. This would, of course, only work if all states and corporations accepted the legitimacy of the Democracy Panel. However, it is difficult to be optimistic that the rulings of a Democracy Panel would be taken seriously in the absence of other changes in the global institutional order, and such changes are, in fact, envisaged by Pogge. These changes involve a new approach to sovereignty. Pogge proposes that national sovereignty should be undermined by a form of global federalism, with power dispersed at many levels, and the powers of national governments severely curtailed thereby. The final element of his reform programme concerns national resources and redistribution. Nations should continue to control their natural resources, subject to the findings of the Democracy Panel, but, when they use or sell these resources, governments should pay a small percentage of their value into a fund which would be used to pay a Global Resource Dividend (GRD) to the global poor, who ought to be regarded as having an inalienable stake in these resources, a stake that at the moment brings them no benefits. This is an interesting idea, which actually has positive environmental consequences. It also avoids the counter- intuitive consequences of a tax on the value of resources, because although some resource-rich poor countries would pay more into the GRD than resource-poor rich countries, they would get much more back. World government and globalization Generally in the post-1945 discipline of International Relations world government has been regarded as an utopian project. The revival of the notion of world government is actually a response to the fear of nuclear war. Campbell Craig and William Scheuerman have revived the arguments of John Herz and Hans J. Morgenthau to the effect that nuclear weapons have brought about the ‘demise of the territorial state’. The putative emergence of a global polity, instead, is the work of writers such as David Held, Daniele Archibugi, Luis Cabrera and Mathias Koenig-Archibugi, and the scholars who are developing a model of global constitutionalism. the political – Williams terms this ‘political moralism’ and contrasts it with ‘political realism’. Political moralism is unsatisfactory because it disregards the reality of politics and in particular fails to understand that the ‘first political question’ is always that of securing order. This position is compatible with a kind of liberalism, but it is the ‘liberalism of fear’ of Judith Shklar rather than the liberalism of ideal theorists. The basic units of political life are the weak and the powerful – the assumption is that the powerful will abuse their power unless constrained from doing so; building such constraints is, or should be, the task of political theory. Raymond’s basic argument is similar to that of Williams. He argues that politics is not a branch of applied ethics, political theory should focus on real political actors. On the face of it, the ‘new political realism’ seems to be quite close to the ‘classical realism’ of IR theory – although Morgenthau and other classical realists are not referenced by these writers. Realism in practice The new political realism and the old classical realism are movements within the realm of theory – what of the realm of practice? Much of the second half of this book has been devoted to looking at the emerging global polity and it is time now in this final chapter to look a little more closely at those forces that have opposed and are still opposing that emergence. The first thing that should be said here is that national governments are rarely supportive of shifts in the world that reduce their own significance. The shift away from a society of states towards a global polity is often associated with the West and more specifically with Europe but this can be rather misleading. The United States is clearly part of the West but has never accepted the full implications of a shift away from the society of states. For all that, the major opposition to a new way of understanding notions such as sovereignty and human rights comes from the so-called ‘emergent’ powers, in particular from China and India, and, to a lesser extent, from South Africa and Brazil. The voting record of these countries on various issues (in particular RtoP, see Un resolution for Libya in 2011) should not be over-interpreted, but does plausibly suggest the emergent powers collectively and individually have a rather different approach to issues of sovereignty from the European powers who have been behind the drive to establish sovereignty as responsibility over the last few decades. Why have China, India and the other emergent powers adopted the attitude they have to the new thinking on sovereignty? It is certainly the case that the emergent powers are deeply suspicious of the power of the United States and its allies, and are inclined to interpret an active human rights policy and the redefinitions of sovereignty adopted by the latter as moves in a power-political game rather than as normatively driven actions. Add to this generic suspicion the fact that China and Russia are deeply vulnerable to criticism on human rights grounds. Moreover, this general attitude of resistance to the new thinking is likely to continue even as China and India become more central to world politics, given that the capacity of the US to project its military power is likely to remain unchallengeable, even as its relative economic strength declines. Still, emergent power resistance to new thinking on sovereignty and human rights cannot simply be understood in terms of the contingencies of power politics. There are principles involved here and not simply interests, but also history. In the 17th through 19th centuries, unlike the situation within Europe where European rulers recognised each other as legitimate, albeit sometimes legitimate enemies, European states did not recognise the rulers they came across in the rest of the world as possessing legitimate dominium, and their relations with them were, accordingly, governed simply by relative power. In what became the Americas, such relations were wholly one-sided in favour of the European powers, while in the Indian sub-continent and the East until the late 18th or early 19th century they largely favoured the indigenous rulers. Whereas in Europe the notion of the legal, if not political, equality of rulers had taken hold, China’s relations with other peoples was based on a tributary system in which other rulers were in no sense to be understood as the equal of the Chinese Emperor. The notion of a normatively grounded international society was introduced to China and India via European imperialism once the forces of capitalist industrialisation delivered the East into the hands of Europe. Chinese and Indian civilisation initially experienced the idea of an international society of states from a subordinate position and the elites obviously wanted to overcome. However, these new elites – the nationalist movements of China and India, and the Chinese Communist Party – did not aspire to recreate the old empires, but rather to enter international society as independent and powerful members in their own right. The new states that were created post-1945 no longer had to look to the old European powers for recognition because their international legitimacy was guaranteed by UN membership. This entry into international society was by no means unproblematic. China was a founding member of the UN and a permanent member of the Security Council but the People’s Republic of China’s occupancy of China’s seat at the UN did not take place until 1971. This as a one example of various other problematic events. However, by the mid-1970s both India and China had become fully functioning members of the post-war international order. Having only recently escaped from the experience of being dominated by European imperialism, these countries were now experiencing new attempts to circumscribe their freedom of action in the name of human rights and sovereignty as responsibility. In order to defend their hard-won freedom, they both became, and have remained, firmly committed to an account of sovereignty as untrammelled autonomy. However, the substantial and increasing economic power of China and India probably means that their vision of what it means to be sovereign will be of increasing importance as time goes by. Will this vision evolve? Will economic growth, rising wealth and an increasing stake in the success of the world economic system change attitudes in the emergent powers? This has become a subject for intense debate in academic and policy circles in the US and elsewhere. G. John Ikenberry and Daniel Deudney have summarised the arguments of the classics in modern terms in an article of 2009 by saying that capitalism leads to political democracy because rising wealth and education levels creates a demand for political participation, capitalist property systems need the rule of law and economic growth leads to a diversity of socio-economic interests and the need for political pluralism. This article responded to an earlier article by Azar Gat (2007) who argued on the basis of past history that in practice authoritarian powers are by no means handicapped in the race for economic growth and that there is no reason to assume that as China and Russia become wealthier and more powerful internationally, they will become more democratic or that their attitudes on matters such as sovereignty and human rights will shift. Even if those who believe that economic growth will eventually democratise China are right, it does not follow that China’s views on the relationship between sovereignty and human rights will change. On the other hand, there is very little evidence that the burgeoning Chinese property-owning class is committed to political change. The last few decades have seen two strong trends; the increasing importance of human rights-based policies and ideas of sovereignty as responsibility – summarised here as the emergence of a global polity – and the increasing importance globally of powers who reject these ideas. These two trends are now converging, and one or the other (or perhaps both) will be changed as a result. For much of the last 400 years there has been one rule for Europe and another rule for the rest of the world, and it is not impossible that in the future this will once again be the case. The passage of time will also help in this respect: as the era of colonialism, overt imperialism and Western dominance fades into the distant past, so it might be hoped that the rulers of these countries (China, India, etc) will be less influenced by the desire to avoid any interference with their hard-won independence. In summary, it may be that the future will see a revived contest between the idea of sovereignty and the idea of human rights, and the fusion of the two notions incorporated in the idea of ‘sovereignty as responsibility’ will go into abeyance, but other futures are possible. Which of these paths is taken will depend, ultimately, on the peoples of the emergent powers themselves, but also on the current advocates of the fusion of sovereignty and rights. They must show that respect for human rights is not simply something demanded of others but applies equally to their own societies. In short, they must demonstrate that the principles they promote are truly worthy of support, and in no way reflect Europe’s past history of dealing with the rest of the world.