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The Necessary Connection between Internal and External State Legitimacy: Concerns Regarding Intervention1
INTRODUCTION
Internal and external legitimacy are generally treated as distinct within much political
philosophy. Recently this view has been challenged.2 Whereas the standard view allows for the
existence of a state that is internally illegitimate while, at the same time, it is externally
legitimate (consistent with the Westphalian model), the challenging view makes this impossible.
That is, any state that is internally illegitimate is necessarily externally illegitimate; any state that
is externally illegitimate is necessarily internally illegitimate. While I will be providing a
justification for the challenging view, it is not the primary purpose of this paper. Instead, the
primary purpose of this paper is to address a concern recently raised by Allen Buchanan
regarding said challenging view.3
Buchanan questioned whether or not the challenging view entails that any time a given
populace is justified in revolting that it is necessarily going to be the case that another state
would be justified in intervening. The implication being that this would be problematic; that
there are clearly times when revolution is morally justified but where military intervention is not.
Buchanan’s concern is that the challenging view of state legitimacy would justify more
interventions than ought to be justified. Buchanan has essentially presented a reductio ad
absurdum argument to the challenging view.
In response I argue that, while it may be the case that there will be a prima facie
justification for intervention in all of the cases where revolution is justified, this alone does not
1I do not mean “necessary” here in the metaphysical sense. I concede that, for example, if there was only one state
that it would not make sense to talk about the connection between internal and external legitimacy since external legitimacy would be impossible.
2 For example, in their work, A Liberal Theory of International Justice (2009), Andrew Altman and Christopher
Heath Wellman defend a view that suggests that they are intimately related.
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entail that an excessive number of interventions will be justified. This is because such a prima
facie justification rests on a failure to protect basic human rights. If the prima facie justification for revolution and intervention was to rest on human rights per se, then I concede that
Buchanan’s objection could be a strong one. Additionally, that there is a prima facie
justification does not entail that intervention will, in fact, be justified. States must also consider
other factors (the likelihood of success, human costs, regional and world stability, etc.). For both
of these reasons the reductio suggested by Buchanan fails.
In Section One I argue for a theory of state legitimacy that occasions the necessary
connection between internal and external legitimacy. In Section Two I define what I have in
mind when using the terms revolution and intervention. In Section Three I concede that, if there
is a justification for violent revolution, there is also a prima facie justification for military intervention. I then argue that this entailment is not particularly problematic. In Section Four I
consider objections to the two-tiered model of human rights on which my response to Buchanan
depends.
SECTION ONE
1.1State Legitimacy and the Minimal Justice Criterion
The problem posed by Buchanan depends on the claim that internal and external
legitimacy are symmetrical. This is a claim that I defend. In this section I will argue in favor of
this claim by demonstrating that internal and external legitimacy are grounded on one and the
same criterion. I will refer to this criterion as the Minimum Justice Requirement. States that fail
to fulfill this criterion do not have the right to rule nor do they enjoy sovereignty rights.
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morally justified. Similarly, if states justifiably enjoy sovereignty rights, then military
intervention is not going to be morally justified.
I describe the theory of state legitimacy that I am defending as a human rights-based
theory. It is the direct result of previous (partially successful) theories posited by John Rawls
and then Allen Buchanan. Though I believe this theory is best supported by foundational liberal
principles, it is not, necessarily, a liberal theory. Conceivably someone could defend this theory
or something quite similar given independent commitments to human rights or perhaps even on
consequentialist grounds. While I do believe that this theory is ultimately a justice-based theory,
I am referring to it as a human rights-based theory in order to distinguish it more clearly from
Buchanan’s.
This human rights-based theory demands that in order for a state to be legitimate it must
fulfill the following condition:
The Minimal Justice Requirement:
In order to be minimally legitimate (that is, in order to justifiably have states’ rights—the right to rule and sovereignty rights), a state must be minimally just. Minimally just is to be understood as, not only refraining from violating, but also protecting basic human rights. This duty requires only that states be minimally efficacious where minimally efficacious is understood as providing or at least attempting to provide in some significant way.
This requirement is justified by a variation of Buchanan’s Robust Natural Duty of Justice (with
regard to internal legitimacy) and what I call the Robust Teleological Duty of Justice (with
regard to external legitimacy). The Minimal Justice Requirement evaluates states on how they
act in order to determine legitimacy.
I am stipulating that a (contemporary) state is best defined as an enduring structure of
basic political institutions which includes the roles to be filled by those who are members of the
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administer the law, as well as those that adjudicate disputes in the law. Furthermore, a modern
state is an entity that claims and exercises supreme control over a given territory and over a
particular population. I point this out here just in case any readers are concerned about the lack
of any efficacy conditions; they are already entailed by my definition of a state, per se. Efficacy
conditions allow us to determine states from non-states. The Minimal Justice Requirement
(henceforth the MJR) is a criterion that allows us to distinguish legitimate states from illegitimate
states. In the following I explain why the MJR provides a justification for both internal and
external state legitimacy.
1.2 Internal Legitimacy and the Right to Rule
The traditional question of state legitimacy has asked the question: How can a state’s claim to coercive authority be justified? This traditional question can also be framed as the
internal question of state legitimacy. It asks whether the claimed authority of a state over its
claimed jurisdiction and its populace is morally justified. The problem of internal legitimacy,
then, is the problem of determining under what conditions a state would have what is frequently
referred to as ‘the right to rule.’ It is generally understood that states that are legitimate have the
right to rule while states that are illegitimate do not (even if they maintain de facto power). Buchanan has described this by writing, “…an entity has [internal] political legitimacy if and only if it is morally justified in wielding political power, where to wield political power is to
attempt to exercise a monopoly, within a jurisdiction, in the making, application, and
enforcement of laws.”4
This is a view that is consistent with my own and is generally accepted.5
It is worth noting Buchanan’s inclusion of the concept of a monopoly of power as well as having
4Buchanan, “Political Legitimacy and Democracy,” Pp. 689-690.
5 Of course, philosophical anarchists will claim that no states are and/or could be legitimate and, therefore, no states
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power over a particular jurisdiction. Legitimate states not only have the right to rule over a given territory, they have the exclusive right to rule. This monopoly obviously comes into
question when considering justifiable interventions. If states do not have an exclusive right to
rule then it presumably becomes much easier to justify interventions.
Internal legitimacy, then, is a necessary (if not sufficient) condition for justifying
coercion. States claim to have the justified authority to coerce their subjects to comply— sometimes even to do what those subjects otherwise would not do. Certainly it is the case that
states wield the de facto power to coerce. This coercion might include imprisonment, imposing some sort of fine, or even banishment or death.6 If any of these punishments or penalties for
failures to comply is to have any hope of being morally justified, they must come from a
legitimate (as opposed to an illegitimate) state. This seems to be a fairly uncontroversial claim.7
Of course, many different possibilities have been suggested for what criteria a state must
fulfill if it is to be internally legitimate; far too many for me to recapitulate them all here. I will,
however, address two that are relevant to my own. I begin with the view recently posited by
Andrew Altman and Christopher Heath Wellman. They write:
Our contention is that legitimacy rests on the ability and willingness of a state to adequately protect the human rights of its constituents and to respect the rights of all others. If a state adequately protects and respects human rights, then we will say that it
successfully carries out the “requisite political functions.” That is, the state is doing the job that it needs to do in order to justify its coercive power and thereby be legitimate. This conception of legitimacy stands free of any particular account of which specific rights ground legitimacy. It holds only that there are some individual moral rights such that any state that adequately protects and respects those rights is thereby legitimate.8
6 I do leave room for the possibility that, even if a state is legitimate (that is, even if it justifiably wields coercive
power), this, in itself, does not justify the use of any sort of coercion.
7 Again, I take it that even philosophical anarchists will accept this claim if only to then deny that any states are
and/or could be legitimate.
6
Altman and Wellman argue that states that either violate or fail to protect the human rights of
their constituents or to respect the human rights of non-citizens (a.k.a. foreigners) are necessarily
internally illegitimate; they do not have the right to rule. It is worth noting that this is consistent
with the view defended by Buchanan.9 According to Buchanan:
[A] wielder of political power (the monopolistic making, application, and enforcement of laws in a territory) is legitimate (i.e., is morally justified in wielding political power) if and only if it (a) does a credible job of protecting at least the most basic human rights of all those over whom it wields power, (b) provides this protection through processes, policies, and actions that themselves respect the most basic human rights, and (c) is not a usurper (i.e., does not come to wield political power by wrongly deposing a legitimate
wielder of political power.” 10
For the sake of this paper, I am focusing on (a) and (b). While I am sympathetic with (c), it does not fall within the scope of this particular inquiry.
I would like to point out that Buchanan limits his justification for internal legitimacy on
the protection of “the most basic human rights” as opposed to human rights per se. In this regard
I align myself with Buchanan. This will be of some import later in the paper and will be
discussed in significantly more detail. I would also like to point out that Buchanan (unlike
Altman and Wellman) makes no mention of the duties that states have to non-citizens (e.g.,
foreigners) when it comes to human rights. In this regard, I align myself with Altman and
Wellman who do posit such a provision. I will discuss this in more depth shortly.
1.3 The MJR and Internal Legitimacy
Why does the criterion that I have proposed justify the right to rule? Why should we
accept that there is a pro tanto reason to comply with state directives given that the state is
9See Buchanan, “Political Legitimacy and Democracy” (2002) and, Justice, Legitimacy, and Self-Determination
(2004).
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minimally just understood as not only refrain from violating (that is, respect), but must also
protect the human rights of all persons? This requirement is grounded in a more expansive
variation of the Robust Natural Duty of Justice. This variation falls out of a critique I will
shortly raise against Buchanan’s conception of the Robust Natural Duty of Justice. Let me be clear that this requirement does not demand that states meet any particular level of success.
Recall that states only need to be minimally efficacious in satisfying the MJR. Provided states
make reasonable attempts to satisfy this condition, it will have been met. It seems unfair and
possibly unjust to require that less fortunate states meet some particular level of success given
some of the less pleasant contingent facts of the world.
As previously noted, Buchanan has argued that a wielder of political power must make a
sincere effort to protect the basic human rights of those over whom it wields power.11
Traditionally, when it comes to issues regarding internal political legitimacy, it has been taken
essentially as fact that the persons that matter are those who are directly subjected to the power
of the state. I believe this to be an unjustified limitation. If human rights are special things that
deserve special protections (as Buchanan claims) then what principled reason exists to limit the
Robust Natural Duty of Justice to only those persons within the states jurisdiction?12 It is
completely counter-intuitive to think that a state that consistently violates the rights of persons
whom it does not wield power over (e.g., non-subjects and non-residents) is, in fact, legitimate.
It is possible that Buchanan might agree with me. However his theory does not indicate this to
be the case as he only references the rights of citizens.
Whether purposeful or an act of omission, Buchanan has argued that in order to be
internally legitimate a state must not violate its citizens’ rights. He writes that a state, “does not
11Buchanan, “Political Legitimacy and Democracy,” P. 703.
12 I concede there could be practical limitations which is why the MJR demands only that states be minimally
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violate its citizens rights, so long as it (a) does a credible job of protecting their basic human
rights, (b) does so by processes and actions that do not violate their basic human rights, and (c) is
not a usurper (i.e. does not come to wield political power by unjustly displacing an entity that is
politically legitimate) [emphasis mine].” 13 Buchanan neglects any discussion of the violation of non-subjects’ rights. If Buchanan is correct and the purpose of the state is to achieve justice, then why does this concern stop at territorial borders? If states need to be concerned with the
protection of rights in order to establish legitimacy, then what moral justification is there for
limiting this concern to persons only within the state’s jurisdiction? There is none. Barring
extraordinary circumstances, violations of human rights are unjust and serve to delegitimize
political authorities.
Furthermore, there exists a prudential concern. If the state is engaging in acts that violate
the rights of non-citizens then this could put the safety and stability of subjects at tremendous
risk; they are now likely to be the victims of a retaliatory action. Such retaliation would likely
result in their own basic rights being violated. Historical examples of this abound. This is a
strong reason to accept that states which violate the rights of non-subjects do not justifiably
wield coercive power. If the state is acting in such a way that it is putting you and your fellow
subjects at risk via its rights-violating behavior, then how could it be legitimate? How is such a
state protecting the most basic rights of the citizens? While Buchanan is explicitly committed to
the idea that the purpose of the state is to achieve justice, I think he would be hard-pressed to
deny that another primary goal of the state is to provide stability and security. Even if he were to
deny this, he would be hard pressed to explain how stability is not a necessary condition for
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achieving justice and why actions that threatened this stability (even if aimed exclusively at
non-citizens) do not delegitimize the state.
The human rights-based theory of state legitimacy demands that states not only respect
but protect the basic human rights of all humans; not just those of their subjects. This allows the
theory to be a human rights-based theory proper (as opposed to a human rights-of-subjects-based theory). This move is not ad hoc since a duty to protect human rights seems to be a duty to protect human rights per se, not just the human rights of subjects. Why bother to refer to them as
human rights at all if they are ultimately the rights of particular subjects and not all humans? As
mentioned, I believe that this duty of states (to protect human rights) is founded upon a variation
of the Robust Natural Duty of Justice. Given that persons have a duty to support just institutions
the burden falls on my opponents to demonstrate how those states which violate the rights of
non-citizens count as even minimally just institutions. These states may act justly towards their
own subjects but that is not the same as being just per se. Of course, the questions remain: Why should one accept the Robust Natural Duty of Justice and how is it relevant to the MJR?
I cannot sufficiently defend why one ought to accept the Robust Natural Duty of Justice
here without sacrificing attention to the primary thesis of this paper and so will leave it as a
stipulation. However, I can indicate that I am persuaded by the justification that has already
been offered by Buchanan. His argument depends upon the acceptance of a principle of equal
concern and respect for persons.14 I can also take a moment to reiterate a brief motivation
offered by Buchanan in the form of a reductio ad absurdum. Consider, for a moment, the denial of the Robust Natural Duty of Justice. Consider for a moment that we do not have an obligation to support just institutions or to create them where necessary. The implications entailed by such
14See Buchanan’s, Justice, Legitimacy, and Self-Determination: International Relations and the Rule of Law (2004),
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a claim being true are so undesirable as to be absurd. This thought experiment will have to
suffice, given the present task, as a sufficient reason for accepting the Robust Natural Duty of
Justice. Having stipulated the Robust Natural Duty of Justice, what, then, is my argument for
accepting the MJR as the condition for internal legitimacy? It can be laid out in the following
way:
1. Every person has a moral obligation to help ensure that all persons have access to institutions that protect basic human rights (provided this does not entail a loss of equal or greater moral value). This requires supporting just institutions (or creating them where necessary).
2. Institutions that protect basic human rights are minimally just institutions. For this reason, the Robust Natural Duty of Justice is an obligation of justice. Every person has a moral obligation to help ensure that all persons have access to minimally just institutions.
3. If something is an obligation of justice, then no one has a right not to be coerced to fulfill it (when coercion is necessary).
4. Therefore, no one has a right not to be coerced to fulfill the Robust Natural Duty of Justice (when coercion is necessary for its fulfillment).
5. Fulfilling the Robust Natural Duty of Justice requires entities that attempt to exercise a monopoly in the making, application, and enforcement of laws.
6. Therefore, wielders of political power violate no one’s rights simply by virtue of acting to ensure that subjects fulfill the Robust Natural Duty of Justice. 15
Conclusion 6, of course, leaves open the possibility that the wielder of political power’s use of coercion might violate its subjects’ rights in some other way. This is the case even though the use of coercion does not itself violate their basic human rights so long as it is used to ensure that
they do what they have a duty of justice to do. Thus we need the additional premise that:
7. In wielding political power to ensure that its subjects fulfill the Robust Natural Duty of
Justice, the wielder of political power does not violate its subjects’ rights, so long as it (a) does
a credible job of protecting basic human rights and (b) does so by processes and actions that do not violate basic human rights.
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8. Therefore, a wielder of political power that satisfies conditions (a) and (b) does not violate the rights of its subjects.16
As I have mentioned, one place where I differ from Buchanan can be found in condition (a).
According to Buchanan, (a) requires that a state does a credible job of protecting at least the most
basic human rights of all those over whom it wields power.17 Instead I am positing that (a) requires that a state does a credible job of protecting at least the most basic human rights more
generally, that is, of all humans. I believe that this is a necessary change given the content of the
Robust Natural Duty of Justice. This duty requires that every person has a moral obligation to
help ensure that all persons have access to institutions that protect their basic human rights
(provided this does not entail a loss of equal or greater moral value).
This difference explains why subjects might be justified in non-compliance or even resistance despite the fact that the state protects their rights. The violations of the rights of
non-subjects, given the Robust Natural Duty of Justice, entails that subjects do not have a duty to
support that institution. Such a state is no longer minimally just in virtue of the rights violations
of non-subjects. Furthermore, in the interest of being consistent with the Robust Duty of Natural
Justice, it is not enough for states to respect the rights of non-subjects, they must protect them.
That is, states that succeed in refraining from violating, but that still fail to do a credible job of
protecting the human rights of non-subjects, are illegitimate and, therefore, do not justifiably
wield the right to rule. Subjects of such states are under no obligation to accept directives from
the state as entailing pro tanto reasons for compliance.
16As previously noted, I am setting aside the concerns of Buchanan’s condition (c) in this paper that the state does
not unjustly displace a previously existing legitimate political entity. However, I believe it to be quite conceivable that such an usurpation would require violations of (b).
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It might be argued that such a standard is too high. That it is too much to expect from
states that they take steps to protect the human rights of non-subjects. This is likely due to
pragmatic concerns. Taking steps to protect the human rights of non-subjects, it may be argued,
will take away from the state’s ability to protect the rights of its own subjects. The subjects of a
given state are the ones that fund such protection (through taxation, volunteer service, etc.), so,
of course, it is only they who receive protection (rather than respect).
Please note that I have not specified how states are supposed to protect human rights. It
is true that a state can fulfill such a duty by offering funds, natural resources, troops, and the like. However, a state can also fulfill this duty by complying with international law and by supporting
(or creating where necessary) just institutions—where this is to be understood as supporting those institutions that protect human rights en masse.
Some might anticipate that I am suggesting that the Robust Natural Duty of Justice also
applies to states. I am not. States, as artifacts of human creation, cannot have ‘natural’ rights. They can, however, have other types of rights. My position is that states have a Robust
Teleological Duty of Justice. I will discuss this in the context of external state legitimacy shortly. In the meantime, I will continue with my discussion regarding the internal concerns of
state legitimacy, particularly with how my view can further be differentiated from Buchanan’s. Another way that my view differs from Buchanan’s is with regard to when persons are justified in notfulfilling the Robust Natural Duty of Justice. I believe that Buchanan’s criterion is too broad. Buchanan claims that I have a duty to help protect people’s rights provided that I am not “incurring any risk to myself or indeed any inconvenience or cost of any kind.”18
Presumably it is Buchanan’s belief that we incur no risk, no inconvenience, or cost of any kind when we protect human rights. After all, as regular citizens (that is, as non-wielders of power),
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we need only obey the law. Such a presumption is controversial, particularly among libertarians. To his credit, Buchanan does consider a possible libertarian objection, though he omits this much
stronger one.
Buchanan considers that libertarians might object to his theory on the basis that the
obligation to help ensure that all persons have access to just institutions is “only a duty of charity, not justice.”19
I believe that libertarians will, instead, object to his theory on the basis
that there is a significant inconvenience and/or a significant cost to ensuring that all persons have
access to just institutions even if this only requires that subjects comply with the law (particularly tax laws).
Assuming for the moment that libertarians are correct and that individual liberty is of the
utmost value, then there is reason to believe that persons do incur a cost and/or inconvenience by
obeying the law. Certainly many philosophical anarchists, if not libertarians, will have this
inclination. Compliance with the law involves placing a limit on individual liberty and/or
autonomy. Thus there is a problem with Buchanan’s construal given that he has claimed that any
amount of risk, inconvenience or cost would satisfactorily expunge a person from this duty of
justice. If this is in fact the case, then Buchanan’s theory has lost much of its force and, perhaps, appeal since virtually everyone would be justified in failing to fulfill the Robust Natural Duty of
Justice. Thus, under Buchanan’s construal, the fact that a legitimate state orders us to do
something no longer counts as a ‘weighty’ reason to comply; it just counts as some reason. My
position is that it is only when we must sacrifice something of equal or greater moral value that
we are justified in not fulfilling this duty of justice. This change salvages the claim that
directives from legitimate states are, in fact, pro tanto directives. Subjects need to have a
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weighty moral reason not to comply, not just some reason that could include any relatively minor
inconvenience and/or cost.
Assuming that my revisions are successful, we now have a solid justification for a state’s right to rule. Persons have a duty to support just institutions. This entails complying with the
directives of legitimate states (which are minimally just) unless they have a weighty moral
reason to do the contrary. States which meet the MJR are internally legitimate states; in order to
justifiably claim the right to rule, states must protect the human rights of all persons.
1.4 External State Legitimacy and Sovereignty Rights
In addition to the internal concerns regarding state legitimacy, there are external concerns
that must be addressed. External concerns relate to a states’ authority outside of (or on behalf of) the territory and subjects over which it claims jurisdiction. The external question of state
legitimacy is directly tied to what I have referred to as state sovereignty rights.
Whether or not a given state justifiably claims these sovereignty rights depends upon
whether or not it is a legitimate state. This is a relatively uncontroversial claim. Of course, as
far as the ‘real-world’ is concerned, it is more appropriate to say that these rights depend upon
whether or not a given state is recognized as a legitimate state by other (presumably legitimate) states. Regarding this concern, I think that it would be quite easy to defend the claim that states
only ought to be recognized as legitimate when they are, in fact, legitimate. Certainly the burden
of proof falls on those who disagree.
Until recently, the criterion for determining external state legitimacy was to be found in
Article I of the Montevideo Convention of 1933; it is often referred to as the principle of
effectivity. This principle states that: Any state that can effectively function as a state is, in fact,
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Convention, in order to satisfy the principle of effectivity: “The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined
territory; (c) government; and (d) capacity to enter into relations with the other states.”20
As I
wrote above, such effectivity conditions serve to point out states from non-states, not legitimate
states from illegitimate states.
More recently international law has supported the idea that there is and ought to be a limit
to state sovereignty. This includes a limit to how a state may treat its own subjects and a limit to
how a state can treat the subjects (or the property/resources) of another state without forfeiting its
own sovereignty rights. Of this Buchanan writes:
According to the current or ‘modern’ criteria, there is an additional element: [(e)] in coming into being, an entity that claims to be a state must not have breached a (basic) rule of international law. At present, it is not clear how much of an additional constraint, if any, condition [(e)] represents. The dominant international legal opinion seems to be that in general entities that satisfy the traditional criteria, which are summarized under the
title ‘the principle of effectivity’ are independent states and should be recognized as such
in international law.21
There is becoming a recognized need for additional normative criteria to determine which states
are to count as legitimate in this external sense and to, therefore, (justifiably) act as agents (that
is, “a person of international law”) within the international system. Of course the recognition for
this need is quite distinct from whether or not any significant action has been taken to amend this
problem. Unfortunately, a clear distinction can be drawn between the ideals of international law
and the actual circumstances of an imperfect world. However, even if it were the case that
existent states perfectly fulfilled (a) – (e) there still remain significant normative concerns. Buchanan and I have argued that the addition of element (e) is far from sufficient for justifying
20 Montevideo Convention.
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sovereignty rights; Altman and Wellman agree. Clearly, additional normative criteria are needed
for states to justifiably claim sovereignty rights, that is, to for them to be externally legitimate.
This demand for additional normative criteria is not ad hoc. In fact, this is a claim that is consistent with much if not most Just War Theory.22 For the moment, however, it is enough to
point out that political theorists such as Buchanan (as well as political agents) believe that
additional normative criteria are necessary for determining external state legitimacy.23 I
wholeheartedly agree. The status quo, while an improvement on the principle of effectivity,
remains severely lacking in normative content given the rights and powers enjoyed by
recognized states.
The normative concerns that arise within the context of external state legitimacy depend
upon the role that states play on the international stage and the powers that they have
traditionally been granted or have seized. For instance, states are generally regarded to have the
right to territorial integrity, the right to control their borders and also the (exclusive) right to
control the resources located within their borders. If we consider just one valuable and limited
resource (such as crude oil), then we can easily see the real-world repercussions that hinge on a
state’s legitimacy status. The need for additional normative criteria becomes clearer upon further
reflection on existent state sovereignty rights.
According to A. John Simmons, “The rights claimed are minimally those that a state must
exercise if they are to retain effective control over their territories and populations in a world
composed of numerous autonomous states.”24
Particular state’s rights have been associated with
22For the most obvious example see David Luban’s “Just War and Human Rights” (1980).
23For an obvious example of a political agent who shares this view see Kofi Annan, “Human Rights and
Humanitarian Intervention in the Twenty-First Century” (2000).
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the more general right of state sovereignty. Traditionally, the right to state sovereignty has
entailed:
1. The right to territorial integrity;
2. The right to noninterference in internal affairs (internal self-determination); 3. The power to make treaties, alliances, and trade agreements, thereby altering its
juridical relations to other entities; 4. The right to make (just) war;
5. The right to promulgate, adjudicate, and enforce legal rules on those within its territory (subject to certain restrictions).25
6. The right to limit entry into and exit from its territory.
7. The right “to control the use of land and resources within its territory….” 8. The right to “define the rules of property….”26
Given the significance of these rights, we can see the real-world import of questions regarding
external state legitimacy. Of special interest to the inquiry at hand, of course, are the rights to
territorial integrity, the right to non-interference in internal affairs, and the right to make just war.
Before addressing these in any detail, however, something must be said about how we ought to
determine which states do and which states do not justifiably enjoy these rights. That is, how do
we determine which states are, in fact, externally legitimate? What additional criteria are
necessary for state legitimacy in addition to (a) – (e) above?
As was the case with internal state legitimacy, this is a question that has garnered
numerous responses—too many to discuss within the confines of this paper. I will refer to only one particularly relevant possibility. This possibility is consistent with my own view and is that
which is posited by Altman and Wellman. As was the case with internal legitimacy, they claim
that:
To qualify as legitimate, a state must satisfactorily protect the human rights of its constituents and adequately respect the human rights of everyone else. One must guard
18
against underestimating the importance of the italicized portion of the preceding sentence. While it is common to place the greatest emphasis on how states treat their own citizens, a state cannot be legitimate unless it also respects the rights of foreigners.
Even if Saddam Hussein’s regime in the early 1990’s had flawlessly treated all Iraqis as
free and equal citizens, for instance, it would still have become illegitimate for having invaded Kuwait. And, as a consequence, this counterfactual Iraq would not have had an irreducible moral right to political self-determination.”27
States that engage in aggressive wars, for example, are externally illegitimate, since aggressive
wars violate human rights.28 Thus, it is necessary (even if not sufficient) that states refrain from
violating the human rights of foreigners (that is, the citizens of other states) if they are to have
the right to political self-determination—one of the sovereignty rights mentioned above. In order to be externally legitimate states must protect the human rights of their citizens and respect the
human rights of all others.
Additionally, states that violate the human rights of their own citizens, via genocide, for example, are also externally illegitimate—just as if they had violated the rights of non-citizens in another jurisdiction (say, in an aggressive war). This is the claim that is frequently used to
justify so-called humanitarian intervention. Under Altman and Wellman’s construal, once a
state engages in gross violations of human rights (of which genocide is a clear example) either
against its own citizens or against foreigners, it is no longer recognized as legitimate and thus no
longer maintains its sovereignty rights. In particular, the state no longer has the right to
territorial integrity nor to political self-determination. According to Altman and Wellman, “[A]
state’s right of self-determination depends on its ability and willingness to protect human rights;
as a consequence, states that satisfactorily perform these functions—and only such states—enjoy a moral right to sovereignty.”29 This is a view to which I am quite sympathetic though my own
27 Altman & Wellman, P. 148.
19
position is distinct. Please note that I have already suggested that citizens need not be compliant
with state directives if their state fails to protect the human rights of non-citizens.
It is easy enough to imagine a state that fulfills the modern criteria (a) – (e) but is still quite obviously externally illegitimate due to how it treats its own citizens, how it treats
non-citizens, or both. A paradigm case is Nazi Germany. Even before it began its aggressive war of
occupation, Nazi Germany was an illegitimate state under this construal because of the genocide
that it was engaging in against (many of) its own citizens. Furthermore, Nazi Germany was an
illegitimate state when it engaged in an aggressive war with its neighbors (even more so when it
committed further acts of genocide within occupied territory). This is an example that Altman
and Wellman appeal to in there discussion of how we determine whether or not a state is
providing sufficient protection of and respect for human rights. They ask:
So how does one decide whether or not a state provides adequate protection? Our
suggestion borrows a phrase from international criminal law: protection is adequate if and only if a state neither perpetrates nor permits “widespread or systematic” violations of the human rights of person within its jurisdiction. Any state that perpetrates or permits such violations lacks a right of self-determination that would circumscribe the legitimate scope of international criminal jurisdiction. On account of its monstrous violations of human rights, Nazi Germany was an illegitimate state lacked any claim against the jurisdiction of the IMT. Moreover, German leaders were liable for perpetrating such atrocities, even when committed against persons within the territory of the Third Reich and quite apart from the existence of any war nexus.30
States that either violate or fail to protect the human rights of their constituents or to adequately
respect the human rights of non-citizens (a.k.a. foreigners) are necessarily externally illegitimate;
they do not have sovereignty rights. As I mentioned earlier I am sympathetic to Altman and
Wellman’s view but I am not in total agreement.
20
Consider again the MJR; the obvious difference is that Altman and Wellman and I differ
in that I believe states must protect the human rights of all persons (not their subjects only). I
believe this for similar reasons to those given above with regard to internal legitimacy. The
burden is on my opponent to show why there is a moral obligation to protect the human rights of
citizens but only respect those of non-citizens given the obligation rests on human rights. Altman and Wellman and I also differ in that I place an emphasis on basic human rights and not human rights per se. I will say more on this distinction later in the paper. Of course, this leads
to the question: How does the criterion that I have suggested justify sovereignty rights? Why
are states that satisfy the MJR externally legitimate? In order to answer this question I must
posit and then defend what I am calling the Robust Teleological Duty of Justice.
The Robust Teleological Duty of Justice depends on the assumption that a (if not the) primary purpose of states is to advance justice. I take advancing justice to minimally include the
protection of basic human rights. I do not believe this to be an unrealistic assumption. In fact, it
has generally been taken for granted in contemporary political philosophy that a (if not the)
primary purpose of the state is, in fact, to provide and promote justice.31 So, assuming that we
accept justice as a primary goal of the state, how does this inform a theory of state legitimacy
when it comes to justifying sovereignty rights? Let me begin by positing the Robust
Teleological Duty of Justice:
The Robust Teleological Duty of Justice:
Given their primary purpose is to provide and promote justice, each state has a duty to support (or create where necessary) just institutions (provided this does not entail a loss of equal or greater moral value) where justice is to be minimally understood as the protection of basic human rights.
31 If Rawls is correct in his famous claim that, “Justice is the first virtue of social institutions,” then we have good
21
Why should anyone accept the Robust Teleological Duty of Justice? My argument is quite
simple: If states exist for the purpose of providing and promoting justice, then they can only
achieve this goal if they support (or create where necessary) institutions that protect basic human
rights. Therefore, states have a teleological duty to support minimally just institutions (including
minimally just ‘meta-institutions’). As I have tried to make clear, this is not a moral duty, it is a teleological duty.
An additional argument is needed to demonstrate that there is a moral imperative for
states to fulfill their purpose; an argument that demonstrates how created entities have a moral
obligation to take reasonable steps to fulfill their purpose. I do not think this is an impossible
task, though I will not pursue it here. I believe that the duty is sufficient even if ‘only’
teleological. It explains why states (and not just persons) have a duty to support just institutions
where justice is to be understood (minimally) as the protection of basic human rights. One of the
most successful ways that states can fulfill this duty is by supporting a (minimally just)
international state system and/or other meta-institutions that protect human rights. For poorer
countries, this might be the only way to fulfill this duty. Just as in the case with individual citizens where complying with state directives may be their only way to support just institutions,
for some (particularly less powerful and/or less wealthy) states compliance with directives from
said meta-institutions may be the only way they can be minimally efficacious when it comes to
protecting basic human rights, particularly the basic human rights of non-subjects.
‘Rewarding’ states that protect human rights (within and without their claimed
jurisdictions) with the advantages of recognition andwithholding that ‘reward’ from those states
that do not encourages behavior that moves the system closer to the goal of promoting justice
22
Teleological Duty of Justice provides an incentive for compliance with a morally plausible
existing rule of international law (e.g., the rule against conducting aggressive wars). In a system
that lacks enforcement mechanisms of the sorts that states have internally, this is an important
consideration. Additionally (and more importantly), it provides a justification for why only
states that protect the human rights of all persons justifiably claim sovereignty rights. One reason to believe this is the commitment some philosophers have that states cannot be externally
legitimate unless they are internally legitimate.32 However, this is not the only reason why
satisfying the MJR is necessary for external state legitimacy.
The recognition of minimally unjust states (states which do not protect basic human
rights) as legitimate undermines the internal legitimacy of the state that is doing the recognizing. That is, by recognizing an illegitimate state as legitimate, the recognizing-state is, itself, failing
to protect basic human rights. That is, states that recognize illegitimate states as legitimate fail to
satisfy the MJR. States that recognize illegitimate states as legitimate are necessarily not protecting human rights. This is because recognition grants a minimally unjust state the
protections that will allow it to continue to violate (or fail to protect) basic human rights. Given
states must satisfy the MJR to be internally legitimate; this should continue to persuade those
philosophers who believe that a necessary condition for a state to be externally legitimate is that
it be internally legitimate.
The Robust Natural Duty of Justice together with the Robust Teleological Duty of Justice
justifies the MJR as a necessary condition to be satisfied in order for a state to be externally
legitimate. The Robust Natural Duty of Justice justifies the MJR as a necessary condition to be
satisfied for a state to be internally legitimate. Thus, in order to be legitimate either internally or
32 Buchanan has made just such a claim in, “Recognitional Legitimacy and the State System.” See especially Pp.
23
externally (in order to justifiably enjoy the right to rule or sovereignty rights), a state must satisfy one and the same criterion; it must satisfy the MJR; states must protect the basic human rights of
subjects and non-subjects alike (or at least make reasonable attempts to do so).
1.5 The Necessary Connection between Internal and External State Legitimacy
The connection between internal and external state legitimacy has now been made clear.
In order to be internally legitimate, states must fulfill the MJR. In order to be externally
legitimate, states must also fulfill the MJR. Thus, internal and external state legitimacy rely on
one and the same criterion. It is not that internal legitimacy depends upon external legitimacy, or
that external legitimacy depends upon internal legitimacy; it is that they must coexist or not exist
at all. If the criterion for internal state legitimacy has not been met, then necessarily the criterion
for external state legitimacy has not been met. If the criterion for external state legitimacy has
not been met, then necessarily the criterion for internal state legitimacy has not been met. In
addition to satisfying some people’s intuitions, I believe that this also adds a desirable simplicity.
Thus internal and external legitimacy remain necessarily connected. If a state is
internally illegitimate because it fails to protect basic human rights (e.g., by engaging in ethnic
cleansing), it is necessarily going to be externally illegitimate (for the same reason). If a state is
externally illegitimate because it fails to protect basic human rights (e.g., by conducting an
aggressive war) it is also going to be internally illegitimate (for the same reason). It is in this
way that internal and external legitimacy are necessarily connected.
We are now at a point that where I can reintroduce Buchanan’s worry that is really the primary focus of this paper: If it is true that internal and external legitimacy rely on one and the
same criterion then doesn’t this entail that anytime you have a justified reason for a violent
24
won’t this result in too many interventions being justified? On the surface, this appears to be a
legitimate concern. In order to address this concern in detail, however, I must first briefly sketch
over what are often thought to be justified reasons for violent revolution as well as justified
reasons for military intervention.
SECTION TWO
2.1 Revolution
Amongst contemporary political philosophers it is pretty much taken as given that
subjects have a right to revolution given particular circumstances. These states-of-affairs are
generally tied to some failure of the state. More particularly, it is taken by many to be essentially
a fact that, if a state is violating the human rights of its own citizens, then those citizens have a
right to revolution. Personally, I am not so sure that this is entirely uncontroversial. Ultimately,
this ‘fact’ will depend on what is meant by the term human rights. If by human rights one means those rights set forth in the Universal Declaration of Human Rights, then I am not convinced.
Additionally, whether or not there is a right to revolution will also depend upon what is meant by
the term revolution. If one believes that revolution always entails the use of violence, then I am
also not so sure that this is an uncontroversial claim.
For example, when it comes to Article 24 of the Universal Declaration justifying violent
revolution on the grounds of human rights violations becomes problematic even if the violation
is widespread and systematic.33 It is unconscionable that violent force be justified because one
does not have a right to “periodic holidays with pay.” 34 Of course, if one believes that there is such a thing as non-violent revolution, then perhaps that type of revolution would be justifiable.
33“Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays
with pay.” Universal Declaration of Human Rights.
25
The presumption here is that violent action requires a stronger justification than non-violent
action. A similar problem arises with regard to Article 23 and its provisions regarding the right
to join trade unions.35 If one is referring to a non-violent revolution then perhaps I am inclined
to agree that such action is justified.36 However, if what is meant is violent revolution then I
strongly disagree. Part of my disagreement has to do with a distinction I alluded to earlier
between basic and non-basic human rights.37 I do not believe that either Article 24 or Article 23
is an example of a basic human right. As such, violations of them do not justify the use of
violence (either by the citizens of the state or by an outside party). I say more about the
distinction between basic and non-basic human rights shortly.
The problem posed by Buchanan which I am addressing in this paper is strongest within
the context of violent revolution and military intervention. For that reason, I focus on just such a
context—a context of violence. For the sake of clarity, my use of the term revolution will exclusively refer to violent revolution. As I have mentioned, my response to Buchanan rests on the claim that revolution is justified when one’s state does not protect basic human rights. This is consistent with the theory of state legitimacy I defended above. States that violate basic
human rights, for example, are illegitimate and thus do not justifiably claim the right to rule.
Citizens of such states have a prima facie justification to engage in revolution.
2.2 Intervention
While it may be true that the right to revolution is relatively uncontroversial (depending
on how it is cashed out), the same cannot be said about intervention.38 As has been noted, the
35 Universal Declaration of Human Rights.
36
It seems perfectly reasonable that people have a right to protest, engage in civil disobedience, etc. in order to change policy regarding paid holidays and the right to join trade unions.
37 Obviously, I am not the only person to make such a distinction.
26
presumption of the international community is that states have a right to non-interference. As
with the term revolution, I am associating the term intervention exclusively with the use of
violence, more particularly, with military violence. In so doing I do not deny that there exist
non-violent ways of intervening with states that may be preferable. For example, Mohammed
Ayoob recommends, “Moral suasion, economic sanctions, and the equivalent of an international social boycott,” as alternative (non-violent) ways of affecting change within states that violate
human rights. Additionally, James Nickel has recommended the use of what he calls
“jawboning”. Jawboning includes:
[T]he “means for promoting human rights [that] have been devised that do not require intervention or the imposition of sanctions. These weaker means include educating governments and publics about international human rights standards, treaties that commit countries to human rights norms and require governments to make reports on their
progress in realizing them, and nagging and shaming governments by NGOs, other governments, and international officials (e.g., the UN High Commissioner for Human Rights).39
I will henceforth refer to non-violent types of ‘intervention’ as jawboning and will reserve the term intervention for those interventions that involve military violence. To clarify, unlike Nickel,
I include “sanctions” within the category of jawboning since they do not utilize military
violence. In so doing I do not denying that methods used to interfere cannot be parsed further
than these two categories.
As mentioned, whether or not interventions are justified is relatively controversial. In,
The Law of Peoples, John Rawls lists the “duty of non-intervention” among the “traditional principles of justice among free and democratic peoples.”40 Of course, Rawls goes on to say that
this particular principle “will obviously have to be qualified in the general case of outlaw states
39 Nickel, P. 271.
27
and grave violations of human rights.”41
As far as international policy is concerned, such a
qualification has already been made. As Ayoob (a critic of intervention) has made clear: “It is
true […] that international sensibility regarding human rights and their violations have changed
quite radically during the past 50 years and this reality cannot be ignored. Therefore, a moral
case can certainly be made regarding the need for humanitarian intervention and the violation of
sovereignty that such intervention may necessarily entail.”42
General consensus suggests that
states ought not to intervene except in extraordinary cases. Such extraordinary cases include
grave violations of human rights. This general consensus is consistent with the theory of state
legitimacy I have defended. States that violate basic human rights, for example, are illegitimate
and thus do not justifiably claim state sovereignty rights which include the rights to
non-interference and to territorial integrity. Other states, then, have a prima facie justification for intervening.
Similar to the reasoning I presented above regarding when revolution is justified, I
believe that intervention is justified only when basic human rights are being violated. Also
similar to the discussion above, it would seem strange (if not outright absurd) to suggest that
states have a right to intervene if the citizens of another state have had their rights to holidays
with pay or to form trade unions violated.43 Violations of non-basic rights do not justify the use
of violence—whether it comes from an internal source (as in the case of revolution) or an external source (as in the case of intervention).44 To be clear: intervention of this kind is not
41 Rawls, P. 37.
42
Ayoob, P. 94.
43 This might very well justify interventions in the United States given some recent state-level legislation.
44 I recognize that the distinction here is frequently blurred such as in cases when foreign states encourage and/or
28
limited to ‘traditional warfare’ but also includes assassination, the implementation of ‘no-fly
zones’, and other types of violent military intervention.45
In extreme circumstances intervention may very well be the only way to stop violations
of basic human rights. As Michael Walzer has pointed out, “Against the enslavement or massacre of political opponents, national minorities, and religious sects, there may well be no
help unless help comes from outside. And when a government turns savagely upon its own
people, we must doubt the very existence of a political community to which the idea of
self-determination ought to apply.”46
Clearly, states that violate the basic human rights of their own
citizens are not satisfying the MJR, and as a consequence, they do not have the right to
non-intervention.
This is a view that is consistent with David Luban’swho has argued that, “a state must be legitimate in order for a moral duty of non-intervention in its affairs to exist.”47 Additionally,
Altman and Wellman “endorse Charles Beitz’s view that ‘it is because all persons should be
respected as sources of ends that we should not allow all states to claim a right of
autonomy’….”48
Finally, this is a view that Rawls also endorsed, evident when he wrote: “I said that we must at some point ask the question whether it is ever legitimate to interfere with outlaw
states simply because they violate human rights, even though they are not dangerous and
aggressive towards other states, and indeed may be quite weak. Certainly there is a prima facie
case for intervention of some kind in such cases….”49
I believe each of these theorists to be
correct in this regard.
45I defend the use of political assassination to defend basic human rights in my paper, “State-Sponsored Political
Interventionist Assassination, Just War Theory & Human Rights” (currently unpublished).
46
Walzer, P. 101.
47 Luban, P. 258.
48 Altman & Wellman, n.23, P. 204.
29
I do agree with Nickel that intervention should not be used to end violations of all human rights and that, in some cases (perhaps many), jawboning is to be preferred (and that it is likely
to be more successful). I distinguish when intervention is or is not justified based upon whether
there are violations of basic or non-basic human rights; violations of basic human rights justify
intervention (and revolution), violations of non-basic human rights do not.50 Nickel has
criticized just such a distinction. I will address his concerns in Section Four. Before moving on,
however, I must be more explicit with my response to the problem posed by Buchanan.
SECTION THREE
3.1 The Failure of the Reductio as Presented by Buchanan
Given what I have argued above I have no option but to concede to Buchanan that if a
revolution is justified then an intervention is also going to be justified. However, this is a
somewhat limited concession. More specifically, I have argued that the failure to meet the
demands set forth in the MJR provide a prima facie justification for revolution and intervention.
Thus, it is true that if there is a prima facie justification for revolution there will be a prima facie
justification for intervention (and vice versa). However, that there is a prima facie justification
for revolution and intervention alone does not entail that such actions will be justified in a
significant number of cases. Certainly it does not entail the number of cases that would be
necessary to motivate Buchanan’s reductio. There are two reasons for this.
First, states must violate or fail to protect basic human rights in order to be illegitimate. Thus, interventions will be justified only when there has been a violation or failure to protect
these basic human rights. Thus, it is unlikely that there will be any increase in the number of
50 If intervention is not even prima facie justified in cases where there are gross violations of basic human rights
30
justified interventions upon the acceptance of the human rights-based theory of state legitimacy
which I have defended. Alternatively, if the prima facie justification for intervention rested on a
duty to protect all human rights then Buchanan’s objection might very well be a strong one. Whether or not too many interventions will be justified by a particular theory of state legitimacy
depends upon the criteria that must be met, not on whether or not the criteria for the internal and
external aspects are one and the same. Of course it is possible to imagine a theory of state
legitimacy where the internal and external aspects depend on one and the same criteria which
would, in fact, justify too many interventions. However, this feature would depend upon the
criteria themselves and not on the fact that the criteria are shared. After all, it is just as possible
to imagine a theory of state legitimacy where the internal and external aspects do not depend
upon one and the same criteria that would also justify too many interventions. The theory of
state legitimacy I defend is no more open to this sort of criticism than are more traditional
theories of state legitimacy where the internal and external elements are not as intimately tied to
one another.
The second reason why Buchanan’s reductio does not succeed is because the failure to
protect basic human rights entails a prima facie justification only. States must also consider other factors (the likelihood of success, the amount of lives that will be lost, so-called ‘collateral
damage’, how allies will react, whether or not the intervention is wanted by those being harmed,
etc.). It is not difficult to imagine situations where there might be a prima facie justification for
both revolution and intervention but where only revolution is ultimately justified. That is,
31
interventions. This becomes clear when you take into account the impact of such actions on the
world as a whole. As Michael Walzer has pointed out:
A state contemplating intervention or counter-intervention will for prudential reasons weigh the dangers to itself, but it must also, and for moral reasons, weigh the dangers its actions will impose on the people it is designed to benefit and on all other people who may be affected. An intervention is not just if it subjects third parties to terrible risks: the subjection cancels the justice [emphasis mine].51
It does not seem difficult to imagine cases where revolutions would have relatively little impact
on third parties when compared to interventions. Again, while there may be a shared prima facie
justification, this does not entail that every time a revolution is, in fact, justified that an
intervention will, in fact, be justified. There are many other mitigating factors to take into
account. Such mitigating factors are the topic for discussion in much Just War Theory.
I should be clear that while I do offer a justification for intervention, I do not intend it to
be a substitute for Just War Theory but rather a complement to it. Just War Theory may
provide justifications for when the use of violence (and how much) is morally justified, but it is
also necessary to justify the violation of states’ rights—particularly the rights to non-interference and to territorial integrity assuming such rights exist (which is the general consensus of the
international community). Additionally, I have argued for a justification of military intervention
that may or may not include traditional warfare such as assassinations (perhaps including strikes
carried out by unmanned aerial vehicles), the implementation of ‘no-fly zones,’ etc. Consistent with Just War Theory, I concede that the failure to protect basic human rights and/or violations
of basic human rights must be systemic and widespread before there will be more than a prima
facie justification for intervention especially given the likelihood that said intervention will result in further violations of basic human rights. Considerations regarding proportionality, competent
32
authority, likelihood of success, etc. most certainly come into play before determining whether or
not an intervention will actually be justified even if prima facie justified. For this reason and
because legitimacy depends upon basic human rights, Buchanan’s worry that too many
interventions will be justified loses its force despite my concession that when there is a prima
facie justification for revolution there will also be a prima facie justification for intervention.
SECTION FOUR
4.1 Objections to the Two-Tiered Model of Human Rights
I have deflected Buchanan’s concern by emphasizing that intervention is justified only when there are violations of basic human rights (as opposed to human rights per se). In his
paper, “Are Human Rights Mainly Implemented by Intervention?” James Nickel argues against what he calls “the two-tiered view of human rights.”52 Nickel points to this distinction as a
possibility while discussing how Rawls (he believes wrongly) goes about determining what
ought to count as a universal human right in his Law of Peoples.
According to Nickel, one strategy that Rawls utilizes is to “[throw] out rights that do not
seem important enough to be able to justify international coercion and intervention.”53
Nickel
believes that “It would be a big mistake to follow Rawls in treating human rights as if their main
political role is to specify when it is permissible for countries to use intervention to deal with
grave violations.”54
I agree with him on this point. The main political role of human rights per se is not to specify when it is permissible for countries to use intervention. However, I believe that basic human rights do specify when it is permissible for states to use intervention (whether
or not it is their main political role, I will leave an open question; clearly it is a role). What then,
52 Nickel, Pp. 274-275.
53 Nickel, P. 266 and Rawls, P. 81.
33
are basic human rights? How do we distinguish basic from non-basic human rights? Nickel
makes the following suggestion:
The two-tiered view postulates two sets of human rights. One set, the upper tier, is of higher priority, enjoys near-universal acceptance, and can justify international action using coercion and force. The other set, the lower tier, consists of full-fledged human rights, but ones that are of slightly lower priority, are perhaps more controversial in some parts of the world, and that cannot justify international interventions involving coercion and force.55
What he has called the upper tier matches quite well with what I have been referring to as basic
human rights while what he calls the lower tier matches quite well with what I have been calling
non-basic human rights. Given I have just made use of such a view, I feel compelled to respond
to his critique.
Nickel’s first objection is that “[he] would not want to define ‘basic human rights’ using Rawls’ narrow list.”56
He “doubts that respect for decent peoples or the avoidance of cultural
imperialism requires us to cut so many liberty rights, democratic rights, and equality rights.”57
It
is worth spending a moment to enumerate Rawls’ list of international human rights:
(1) [T]he right to life (to the means of subsistence and security);
(2) [L]iberty (to freedom from slavery, serfdom, and forced occupation, and to a sufficient measure of liberty of conscience to ensure freedom of religion and thought);
(3) [P]roperty (personal property);
(4) [F]ormal equality as expressed by the rules of natural justice (that is, that similar cases be treated similarly).58
Nickel points out that, “Rawls’s view eliminates most rights in the Universal Declaration that
have strong liberal, democratic, or egalitarian dimensions.”59
