Rawlsian Justifications for Humanitarian Intervention

by Roger Alford

I received this interesting email from an LL.M. student in Europe that is worth sharing with our readers:

I’d like to thank you for your … posts concerning philosophy and international law…. The combination of these areas is very rare, especially in Europe.

I’m wondering about a few things in your post “Jus Cogens Norms and the Historical Accident of Influential States“. You posed that the Rawlsian original position would accept ius cogens norms concerning slave trade and genocide.

I’m not sure whether it would, considering that the original position is meant as an argument of opting into “fair” distributions, by means of ones own self-interest (The veil of ignorance aims to extend this self interest to an a-historical situation). Although in later work, Rawls does seem to make concessions to more Kantian and communitarian claims, self-interest remains a primary engine of the original position-construct.

There also lies the key issue with which I’m struggling: universal appeal of anything, and thus also ius cogens, seems very far away from the Rawlsian distribution theory. It is rather assumed that there are rights than that it is defended for…

So I agree there with your argument that a Rawlsian international system would not allow for ad hoc, power-induced “justifications” for non-defensive wars. This seems to me to sprout from an analogy with the distributive argument, rather than any universal appeal: that a state in an original position behind its veil of ignorance would choose for an international system, not knowing its position in the world, would act against its self-interest to choose for the “right-of-the-strongest”, as he doesn’t know whether he will be the strongest.

This even goes further, as the hegemony of no empire is everlasting, it is even without all these veil of ignorances, clearly not in the long term interest of a hegemonial state, to act according to whatever it pleases.

Thus I’m wondering to what extent the original position in your mind constructs any jus cogens at all.

Just a few thoughts by way of response. The best statement of Rawls’ position on international relations is in his book The Law of Peoples (1999). Just to highlight two aspects of what Rawls says apropos to humanitarian intervention. First, Rawls does not consider the original position as an appropriate argument for conceiving the basic structure of hierarchical societies. He writes (p. 70):

… In the case of a decent hierarchical society, there is no original position argument deriving the form of its basic structure. As it is used in a social contract conception, an original position argument for domestic justice is a liberal idea, and it does not apply to the domestic justice of a decent hierarchical regime…. Only equal parties can be symmetrically situated in an original position. Equal peoples, or their representatives, are equal parties at the level of the Law of Peoples. At another level, it makes sense to think of liberal and decent peoples together in an original position when joining together into regional associations or federations of some kind, such as the European Community…. It is natural to envisage future world society as in good part composed of such federations together with certain institutions, such as the United Nations, capable of speaking for all the societies of the world.

My sense of what Rawls is saying here is that liberal democratic peoples should be equal parties at the level of the Law of Peoples. The United Nations struggles with that conception on at least two levels: (1) it does not distinguish between liberal democracies and other countries, (2) it does not treat all liberal democracies the same, particularly with respect to permanent seats on the Security Council.

The second excerpt deals with human rights and outlaw states (p. 79-81):

Human rights are a class of rights that play a special role in a reasonable Law of Peoples: they restrict the justifying reasons for war and its conduct, and they specify limits to a regime’s internal autonomy…. War is no longer an admissible means of government policy and is justified only in self-defense, or in grave cases of intervention to protect human rights….

It may be asked by what right well-ordered liberal and decent peoples are justified in interfering with an outlaw state on the grounds that this state has violated human rights. Comprehensive doctrines, religious or nonreligious, might base the idea of human rights on a theological, philosophical, or moral conception of the nature of the human person. That path the Law of Peoples does not follow. What I call human rights are … a proper subset of the rights possessed by citizens in a liberal constitutional democratic regime, or of the rights of the members of a decent hierarchical society. As we have worked out the Law of Peoples for liberal and decent peoples, these peoples simply do not tolerate outlaw states. This refusal to tolerate those states is a consequence of liberalism and decency. If the political conception of political liberalism is sound, and if the steps we have taken in developing the Law of Peoples are also sound, then liberal and decent peoples have the right, under the Law of Peoples, not to tolerate outlaw states. Liberal and decent peoples have extremely good reasons for their attitude. Outlaw states are aggressive and dangerous; all peoples are safer and more secure if such states change, or are forced to change, their ways. Otherwise they deeply affect the international climate of power and violence.

Under a Rawlsian Law of Peoples, I read this excerpt (1) to allow for regime change of outlaw states, (2) to sanction humanitarian intervention by liberal democracies, and (3) to reject a moral or natural law conception of universal human rights.

Rawls is making this argument assuming that the Law of Peoples (his label for an idealized international law) was developed with the conception of political liberalism in mind. So he is not saying that humanitarian intervention is lawful as international law now stands, but rather that if the Law of Peoples was organized with due regard to political liberalism, humanitarian intervention would be authorized against outlaw states that engage in grave breaches of human rights. Although Rawls does not say so explicitly, it seems that he is also saying that securing the approval of a special council of states, not all of which are liberal democracies, in order to conduct humanitarian intervention would not be an idealized structure for the Law of Peoples.


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