AJIL Symposium: Comment on Eyal Benvenisti, Sovereigns as Trustees of Humanity

[Christopher McCrudden FBA is Professor of Human Rights and Equality Law, Queen’s University, Belfast, William W Cook Global Professor of Law, University of Michigan Law School, and Leverhulme Major Research Fellow (2011-2014). I am particularly grateful to Kathleen McCrudden who provided helpful comments on an earlier draft.]

Eyal Benvenisti asks how far, if at all, national sovereign states are under an obligation to take into account the effects of their internal decisions on those outside the boundaries of the state. We can consider his argument either at a very high level of abstraction, or test his (and our) intuitions by using a worked example of a practical problem that raises the issue he discusses. I prefer the latter approach.

An example

Over the past couple of years, there has been an intense debate in the United Kingdom over whether the UK should leave the European Convention on Human Rights; as part of this larger debate, there has also been a narrower debate over whether (and if so how) the UK should implement the decisions of the European Court of Human Rights on prisoner voting (an issue on which I have blogged earlier elsewhere).  The way in which both the broader and narrower debates are conducted have potentially adverse effects well beyond the UK. The sight of the House of Commons defying the Court on prisoner voting, or high-ranking members of the Government arguing that the UK should leave the Convention, has potentially damaging effects on the authority and legitimacy of the Court and the Convention in other states.

It is one thing for the robust UK debate to be picked up in other stable constitutional democracies with good human rights records.  It is another thing entirely where the British debate is transmitted to barely democratic European states with a debatable human rights record, and a weak commitment to constitutionalism. In the latter states, the British ‘defiance’ gives aid and comfort to altogether darker forces, which see the British resistance as legitimizing their own visceral resistance to the cosmopolitan liberal vision that the Court and the Convention embody.  Is the UK under an obligation to take into account the adverse effects that the British debate, and any decisions flowing from it, may have elsewhere?

There is, of course, both an empirical as well as a normative issue in play here.  For the purposes of this post, I don’t want to get embroiled in the empirical question of whether the UK debates do have such effects externally (although I’m quite prepare to believe that they have). The question I’m interested in is whether, assuming that there are such external effects, the UK ought to take these into account. It is at this point that Eyal Benvenisti’s article is powerfully relevant, since it addresses directly the morality (as well as the legality) of ignoring what economists call ‘externalities’ in domestic decision-making.  On what might we base an obligation (whether moral or legal) to ‘internalise’ these externalities, for example in the debate over the UK’s continuing membership of the ECHR, or whether to implement the ECtHR’s decisions?

Benvenisti’s argument

Benvenisti seeks to make an argument based on duties arising from our common humanity – what he terms ‘the recognition of the equal moral worth of all individuals’ (at pages 301-2). He is not content with more modest arguments based on self-interest, promising, or common membership, even where the relevant community is conceived as the human community at the global level. This is an ambitious argument, to say the least. Here is what I take to be the core of his position: that states ‘assume certain underlying obligations towards strangers situated beyond national boundaries and also to take foreigners’ interests seriously into account even absent specific treaty obligations’ (at page 297). This is because ‘[i]nformed by the notion that all individuals are of equal moral worth, it is necessary to justify the exclusion of specific individuals or groups from the set of principals for whom national governments act as agents’ (at page 306). As this quotation makes plain, the idea of the state’s ‘agency’ role is critical to Benvenisti’s argument, as well as the central idea that individuals are of ‘equal moral worth’, This gives rise to the idea that sovereign states are ‘trustees of humanity’, which becomes the title of the article.

Equal moral worth

We need to dwell a little on the claim that ‘all individuals are of equal moral worth’. Perhaps strangely, given the centrality of this claim to his argument, there is little explanation or justification given by Benvenisti in support of this assertion, other than his reliance on references to philosophers who support such a claim, a somewhat puzzling use of authority in this context. The absence of such an explanation, importantly, deprives the reader of a key piece in the jigsaw puzzle. Not knowing why individuals are of ‘equal moral worth’ means that we don’t have a clear idea of the moral implications of the claim. If, for example, persons are of equal moral worth because they are made in the ‘image of God’, as many generations of religiously-committed thinkers believed, then that is likely to affect significantly how individuals should be treated by others.

Whether intentionally or not, Benvenisti has here entered the difficult territory that much of the modern philosophical and legal literature on the meaning of ‘human dignity’ engages (see my forthcoming edited volume). Given the centrality of his claim of ‘equal moral worth’ to his thesis, it is territory that I doubt he can escape traversing. It is unclear why, for example, he does not frame his argument explicitly in ‘dignity’ terms, as do several of the philosophers he cites. For other authors who seek to develop a set of state duties outside the borders, the more usual move, often on the basis of an obligation not to infringe human dignity, is to require the state not to infringe the human rights of others, and this would initially seem to fit better with Benvenisti’s identification of the ‘equal moral worth’ of everyone, so it is unclear why ‘equal moral worth’ requires quite such an all encompassing reach for the obligation he constructs. In brief, it is unclear how Benvenisti gets from ‘equal moral worth’ to a requirement, for example, regarding the utilization of global resources generally (at page 308).

States as trustees of humanity

I want to turn now to the argument that sovereign states are ‘trustees of humanity’, for this might provide the answer to the question I have just posed. Benvenisti is right to focus on the role of the state; indeed, what conception we have of the state will significantly affect our reaction to the argument that the state has obligations to those outside their borders. Benvenisti’s argument that the role of the state is to be a ‘trustee of humanity’ appears to be based, in significant part, on an argument that humanity collectively authorized the establishment of states with control over particular territory which humanity permitted to be used for the good of those within the territory. As Benvenisti put it: ‘ownership of parts of global resources is conceptualized as originating from a collective regulatory decision at the global level, rather than being an entitlement that inheres in sovereigns’ (at page 309).

If valid, this would be a powerful argument; the authority of the state, in this telling, derives from delegated power from humanity and therefore the state should be considered to hold that territory in trust for humanity as a whole. The problem, however, is that if taken as an historical argument, as Benvenisti seems to regard it to be (at page 309), he gives no solid historical evidence that anything of this kind ever took place. Citing Grotius and Vattel, among others, in support of an historical account of the emergence of the nation state is like citing Herbert Hart in support of an analysis of the historical emergence of law. Benvenisti’s argument, rather than being a truly historical argument, appears instead to be similar to the, somewhat hubristic, argument that all states really exist because of international law, rather than the other way round, and seems equally questionable.

Unintended effects

The moral foundations of the theory are highly questionable; so too, the potentially adverse unintended effects of adopting Benvenisti’s argument are worrying. It is not entirely clear what types of adverse decisions by states affecting others would be affected by the obligation he advocates, but in at least one respect the answer is clear: the obligations of states to outsiders does not just apply to the need to redress wrongs committed by the state in the past; nor do the obligations apply only to prevent violations of a basic list of basic human rights, but to all decisions that may harm anyone external to the state.  In this, Benvenisti’s proposal is anything but ‘modest’ or ‘minimal’ (at page 314), for it would have the effect of mainstreaming a set of obligations to others across the whole range of government decision-making, going well beyond the narrower, and more traditional confines of decisions that directly impinge human dignity.

I’ve been deliberately vague, so far, on precisely what Benvenisti’s duty to give ‘due respect’ to noncitizens affected by externalities might actually involve. They are, in his terms, minimalist, consisting of an obligation to take others’ interests into account, an obligation to allow those affected a voice in the domestic debates, and an obligation to accommodate others interests when the state would sustain no loss by doing so. I’m less certain who, precisely, bears an obligation to internalise externalities. The starting point appears to be politicians in the legislature, but what about authors of think-tank reports and former Supreme Court judges? Are they under such an obligation?  More intriguing still, how far is there an obligation on current members of the superior courts (particularly the Supreme Court) to be aware of external audiences, and adjust their judgments to take external adverse consequences into account?  Does the era of transnational judicial dialogue bring with it judicial responsibilities as well as judicial opportunities? Benvenisti appears to think so.

Why does the extensive scope of the obligation matter?  These obligations, although non-legally enforceable externally (such as at the international level or in the domestic courts of the citizens adversely affected), would nevertheless constitute strong political arguments (and arguably be relevant legally in the domestic courts of the state taking the contested decisions).  The problem is that Benvenisti is clear that these obligations apply to all states equally. The United States would be under an obligation to the citizens of Haiti, but Haiti would also be under an obligation to the United States. Although Benvenisti acknowledges the objection that this might lead to a return of neo-colonialism only to dismiss it (the reference to states serving as ‘trustees’ of others’ interests carries with it some rather unfortunate baggage), I think he underestimates the extent of the potential problem. In a revealing remark, he replies to concerns that new or weak states might lose out by asking ‘whether clinging to formal nineteenth century-type sovereignty remains in their best interest’ in any event (at page 328), thus adding further fuel to the suspicion of paternalism.

Alternative approaches?

In any event, do we really need Benvenisti’s ambitious argument to support something approaching such a duty, given its weaknesses and disadvantages? It may be useful, at this point, to identify the possible sources for such an obligation that Benvenisti does not adopt. An obvious starting point for such an obligation is enlightened self-interest.  Ensuring that Europe has stable constitutional democracies committed to the Rule of Law is clearly to the UK’s benefit. Authoritarian, human rights-violating states generate violence and instability beyond their borders, and are therefore a drain on our diplomatic and defence resources, quite apart from disrupting the opportunities for trade and investment. The Council of Europe and the European Court of Human Rights have undoubtedly played a significant role in helping to ensure that fragile European states become more or less reliable members of the European public space. That is why the United States’ State Department has warned recently against undermining them, in its own foreign policy interests. The UK is obliged to act in the best interests of its citizens.

That is not the type of argument that Benvenisti uses to support his position that there is an obligation to internalize such externalities. Instead, he attempts to argue that there is an obligation on states irrespective of self-interest, potentially even when it is contrary to self-interest. A possible source of such a (non-self-interested) obligation can be identified: the UK, we might say, is under (at least) a moral obligation to implement judgments of the Court of Human Rights because we have (at least) implicitly promised to do so when we joined the Convention system, and violating that promise is, at least prima facie, morally wrong.  (It also threatens to undermine our expectation that others will consider themselves bound by their promises to us, of course, but that brings us back to self-interest.) But basing a general obligation on such an obvious and powerful source is not Benvenisti’s argument either.

Apart from an obligation derived from self-interest and promising, where else might we locate a duty to others outside our borders? Some have argued that ‘membership’ may provide an important point of departure: two people belonging to the same ‘community’ have some duties to each other simply by virtue of that common membership.  If they do, does that mean that the UK has an obligation to have regard to the effect of our actions on those other members of our community? Some might want to argue that, at the very least, we are all members of a European community (small ‘c’) and that this generates mutual obligations to each other, which would include taking account of the effects of our actions on those others in the community. Again, Benvenisti explicitly rejects this as the source for the type of general obligation he advocates. His objection appears to be based on a view that is sceptical of any concept of the ‘international community’ (at pages 302-3), but this scepticism is not really argued for. For me, it still seems quite an attractive alternative approach.

Conclusion

In conclusion, whilst I am very sympathetic to the general argument that states have moral duties beyond borders, and deeply admire the passion and scholarship that the article evinces, I am so far unconvinced that the theoretical foundations of Benvenisti’s detailed case for such duties work, and I am concerned at their possible unintended consequences. And, returning to the practical problem of how to argue that the current debates in the UK about the ECHR, I don’t think he provides any additional ammunition to convince reasoning sceptics that we should take into account the effects of our internal debate on those outside the UK.