What is this thing called Global Justice? [2 ed.] 2021007552, 2021007553, 9780367420628, 9780367420673, 9780367821531

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Praise for the first edition: ‘This is an extremely accessible and comprehensive introduction to global justice and its application to concerns that continue to threaten global cohabitation. Balancing theoretical richness with exacting practical application, this book is an absolute must-have for anyone interested in better understanding global justice and its scope. In fact, it should be required reading for any course featuring global justice!’ Garrett W. Brown, University of Leeds, UK ‘This volume provides a comprehensive and up-to-date introduction to some of the most important issues in global justice, including world poverty, human rights, cultural diversity, just war and immigration. Kok-Chor Tan does a terrific job in presenting complex ideas in a rigorous yet highly accessible style, drawing on the latest scholarship in political philosophy. This will be an excellent resource for students as well as for teachers.’ Massimo Renzo, King’s College London, UK ‘The text is accessible to the expected undergraduate audience but also to a broader readership, including advocates who desire to be a more effective for those whom they seek to serve. Thanks to its content and style, this text is well able to speak to those from a diverse range of backgrounds.’ Carolyn M. Evans, University of New South Wales, Australia

what is this thing called Global Justice? • What is this thing called Global Justice? is a clear and engaging introduction to this

widely studied and important topic. It explores the fundamental concepts, issues and arguments at the heart of global justice, including: • • • • • • • • • • •

world poverty economic inequality nationalism human rights humanitarian intervention immigration global democracy and governance climate change reparations health justice international justice.

This second edition has been updated throughout and includes two new chapters: on ethical and moral debates concerning reparations and on global health justice. The chapters on world poverty, human rights, just war, borders, climate justice and global democracy have also been substantially revised and updated. Centered on real world problems, this textbook helps students to understand that global justice is not only a field of philosophical inquiry but also of practical importance. Each chapter concludes with a helpful summary of the main ideas discussed, study questions and a further reading guide. Kok-Chor Tan is Professor of Philosophy at the University of Pennsylvania, USA. His books include Justice, Institutions, and Luck (2012), Justice Without Borders (2004), and Toleration, Diversity, and Global Justice (2000).

What is this thing called?

The Routledge Philosophy What is this thing called? series of concise textbooks have been designed for use by students coming to a core area of the discipline for the first time. Each volume explores the relevant central questions with clear explanation of complex ideas and engaging contemporary examples. Features to aid study include text boxes, chapter summaries, study questions, further reading and glossaries. Available: What is this thing called Ethics? Second edition Christopher Bennett What is this thing called Metaethics? Matthew Chrisman What is this thing called Metaphysics? Third edition Brian Garrett What is this thing called Philosophy of Religion? Elizabeth Burns What is this thing called Philosophy of Language? Second edition Gary Kemp What is this thing called Knowledge? Fourth edition Duncan Pritchard What is this thing called The Meaning of Life? Stewart Goetz and Joshua W. Seachris What is this thing called Global Justice? Second edition Kok-Chor Tan

For more information about this series, please visit: https://www.routledge.com/What-is-this-thing-called/book-series/WITTC

KOK-CHOR TAN

what is this thing called global justice? Second edition

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Second edition published 2022 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2022 Kok-Chor Tan The right of Kok-Chor Tan to be identified as author of this work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. First edition published by Routledge, 2017 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Tan, Kok-Chor, 1964- author. Title: What is this thing called global justice? / Kok-Chor Tan. Description: Second edition. | Abingdon, Oxon ; New York, NY : Routledge, [2022] | Series: What is this thing called? | Includes bibliographical references and index. Identifiers: LCCN 2021007552 (print) | LCCN 2021007553 (ebook) | ISBN 9780367420628 (hbk) | ISBN 9780367420673 (pbk) | ISBN 9780367821531 (ebk) Subjects: LCSH: Social justice. | Human rights. | Equality. | Environmental justice. Classification: LCC HM671 .T358 2022 (print) | LCC HM671 (ebook) | DDC 303.3/72--dc23 LC record available at https://lccn.loc.gov/2021007552 LC ebook record available at https://lccn.loc.gov/2021007553 ISBN: 978-0-367-42062-8 (hbk) ISBN: 978-0-367-42067-3 (pbk) ISBN: 978-0-367-82153-1 (ebk) DOI: 10.43246/9780367821531 Typeset in Berling by SPi Technologies India Pvt Ltd (Straive)

CONTENTS

Acknowledgements viii Preface to the second edition

ix

1 Introduction

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2

World poverty

7

3

Global economic equality

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4

Global egalitarianism: objections and replies

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5

Nationalism and patriotic sentiments

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6

The universality of human rights

60

7

Human rights: the challenge of state sovereignty, culture and gender

73

8

Just wars and humanitarian intervention

87

9

Borders: immigration, secession and territory

108

10 Climate change justice: sharing the burden

132

11 Global democracy: cosmopolitan versus international

148

12 Global health justice

159

13 Reparations: is international reparative justice possible and necessary?

175

14 Conclusion

192

Bibliography 194 Index 203

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acknowledgements For help with the first edition of this book (published in 2017), I am grateful to the students in my undergraduate global justice seminars for their challenging questions, healthy skepticism and constant reminder that a philosophy of global justice must have real world implications. Gratitude also to Sriram Sridharan for his excellent research assistance and Eilidh Beaton for her incisive comments and pointed questions on the full text. Three anonymous readers for the press went well beyond the call of professional duty, as well as personal courtesy and generosity, in providing very extensive and insightful comments on the first edition. Their criticisms and suggestions were all invaluable and I have tried to accommodate as many of them as possible within the confines of an introductory text. Thus, remaining shortcomings are my responsibility. I also thank the editors of Routledge, in particular Rebecca Shillabeer, for proposing this project and for seeing it through each stage with skill, patience and dedication. Andrea Platts’s expert copy editing on the first edition, and good judgment and advice, saved me from several linguistic infelicities and clumsiness. Colleagues, students and friends at the University of Pennsylvania provided the intellectual nourishment for the writing of this book in too many ways to record here. I have learned plenty and not enough from colleagues in the field of global justice, also too numerous to list. Their insights, creativity and proposals and arguments provide the stuff of this book. Thanks to Karen Detlefsen for constantly assuring me that a text on global justice is worthwhile, and to Amalia for habitually saying “think about it”. In preparing the Revised Edition, I enjoyed the advantage of encouraging and kind comments on the first edition from Garrett W. Brown and Massimo Renzo, as well as very helpful feedback from different colleagues and, through them, their own students’ response to the book. I am also grateful to two readers for generously providing extensive and thoughtful critical feedback, both on the first edition and my proposed revisions. Most especially, I should thank Tony Bruce (who took over from Rebecca as Series Editor) for suggesting the revised edition, and for his sage guidance and sound advice throughout. I also thank him and Adam Johnson for logistical support and, most especially, their professionalism combined with great patience. Finally, I acknowledge my debt to Alison Jones for her skilful, thorough and perceptive copy-editing. Her corrections, queries and wise suggestions rescued me from more than a few ill-constructed sentences, inconsistencies in presentation and other linguistic slip-ups.

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preface to the second edition The main changes in this edition are as follows. I have added two new chapters, one on global health justice and another on reparations (Chapters 12 and 13). The original chapters on world poverty, human rights, just war, borders, climate justice and global democracy (Chapters 2, 6, 8, 9, 10 and 11) are expanded on, in some cases quite substantially. The earlier presentation of these chapters, on hindsight, erred a bit too much on the side of brevity. These revisions flesh out some of the core arguments and discussion points that were too tersely presented. In keeping with the approach of the first edition, the revised edition concentrates on seminal or agenda-setting works rather than the most recent contributions as such. But where applicable, some of the secondary references, as well as real world examples, are updated. Minor revisions and edits are made throughout to tighten the presentation, correct ambiguities, repair some factual errors and improve the exposition.

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1 introduction This book is intended for the reader who is new to the field of global justice as a philosophical inquiry and who has little or no background in philosophy. My three main objectives are to introduce such a reader to (i) some of the real world problems of global justice and the moral and philosophical challenges they present, (ii) some of the main positions and arguments that philosophers have proposed in response to these problems, (iii) and the philosophical method of analyzing and evaluating these different perspectives and arguments. If there is a grander goal tying together these objectives, it is to show how philosophy can provide the analytical tools for clarifying and addressing the problems of humanity. Global justice is a philosophical inquiry that is motivated by real world problems. To animate the subject for the reader, thus, I will adopt what we might call a “problemsdriven approach” in this book. Instead of organizing my presentation around different theories of global justice, I will structure our discussion around real world problems or issues of global justice that will be largely familiar to any reader. These problems will motivate our inquiry and provide the access points into the philosophical debate. Some of the topics we will investigate are world poverty and economic inequality, human rights and sovereignty, nationalism and cultural diversity, just war and humanitarian intervention, and boundaries and immigration. Through a discussion of these familiar real world problems and an examination of how the main philosophical positions and arguments attempt to address them, I hope the reader can come to appreciate, in the spirit of John Dewey, that philosophy is not just “a device for dealing with the problems of philosophers”, but is “a method, cultivated by philosophers, for dealing with the problems of men” (Dewey 1981, p. 95).

WHAT IS GLOBAL JUSTICE AND WHY IT MATTERS What is global justice? This question can be interpreted substantively, to be asking what global justice would require of us and what a just global order, or a less unjust one, would look like. Indeed, an objective of this book is to orient the reader towards possible (and competing) answers to the substantive question of what global justice is. But before we begin exploring this substantive question, we should clarify what global justice as a philosophical inquiry is. While the definition of justice, and hence the distinction between justice and other related concepts like ethics, is itself a point DOI: 10.4324/9780367821531-1

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of contention among philosophers (more on this below), let us take it for now, ecumenically, that global justice as an inquiry aims to identify our duties to one another in the world at large beyond the confines of our country, and to clarify the basis and form of these duties.1

GLOBAL JUSTICE AS A NORMATIVE INQUIRY An inquiry into our duties, or what we owe to each other, is a normative inquiry. A normative inquiry is ultimately concerned with “what ought to be” rather than “what is the case”. A normative inquiry is thus basically interested in identifying and justifying standards or principles for guiding action and institutional design. What is the case – for example, how people actually behave or how institutions currently are structured – does not necessarily reflect how things ought to be. The question of global justice (broadly understood) is the question of how individuals and states ought to conduct themselves in relation to others on the world stage, and how international institutions might be restructured if the world were to be more just. We should be interested in normative inquiries. For instance, we know that extreme global poverty is a fact of our world today. But ought the world to be that way? We know as a fact that human rights are not respected to the same degree in all countries. But should things be that way? Ought human rights to be uniformly and universally affirmed and protected? Or ought there to be cultural variations in how human rights are understood and enforced? If we appreciate that things as they are need not equate to things as they should be, we can appreciate the importance of normative inquiry. That a normative inquiry is different from an empirical inquiry does not mean that the former may ignore empirical facts altogether. For one thing, what ought to be may be limited by real constraints in the world, including the limits of human physical nature and the limits of institutional organization. More relevantly for the field of global justice, certain facts might be considered as part of the parameters of inquiry rather than subjects of inquiry themselves. For instance, most discussions of global justice take it as a given that we live in a world of independent and bounded sovereign states, and the salient normative question for them is how we ought to conduct ourselves or design our shared global order in light of this fact. Moreover, it can be argued that certain facts are granted as preconditions for the inquiry of global justice. For instance, the presumptions that humans have competing interests, that we live in a world of moderate scarcity and that we are mortal beings, dependent on one another and confined to the surface of the earth are the factors that make discussions about global justice pertinent. There would be no need to debate about the just allocation of material goods, or at least that debate would likely take a form wholly unrecognizable to us, if we lived in a world of absolute material abundance, such that human beings need not compete with each other at all for resources. Finally, to the extent that principles are useful only if there are feasible means of realizing them, some philosophers point out that our theorizing about principles should be influenced by the limitations of implementation.

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To what extent a normative inquiry is to be constrained by facts – and what kinds of facts are relevant for the inquiry – is itself a point of contention among philosophers. Indeed, some of the topics we will be discussing will engage this crucial question. The key point to note, however, is that even if a normative inquiry has to be appropriately sensitive to certain empirical facts, what it is concerned with ultimately is with how things ought to be.

THE DISTINCTIVENESS OF GLOBAL JUSTICE The question of what we owe to each other is one of the subjects of moral and political philosophy. Global justice is concerned with what we owe to each other in the world at large. So, how is global justice distinct from moral and political philosophy more generally? In a sense, global justice is moral and political philosophy that encompasses the world as a whole. In this regard, global justice is an integral part of moral and political philosophy. Yet global justice is not simply moral philosophy and political philosophy writ large or straightforwardly applied to the global plane. First, global justice draws attention to specific global issues and potential problems of injustice. These special problems can become new test cases for evaluating our moral and philosophical theories, and can, in fact, compel us to revise them. For instance, global justice forces us to confront this question: What does global economic equality tell us about our theories of egalitarian justice that are traditionally conceived for the context of a single state? Do we need to rethink our theories of egalitarianism in light of this global fact? In short, global justice is not simply an additional site of application for moral and political philosophy. Rather, it provides a new vantage point from which to reexamine, and where necessary recast, our moral and political theories. Second, the moral and political context of the world order is not simply the moral and political context of the domestic state carried over to the global stage. Individuals stand in very different moral and political relationships to each other globally than in the setting of the domestic state. The international stage has institutional players that aren’t present at the domestic level, such as independent sovereign state entities. On the other hand, the international stage lacks other forms of institutions. There isn’t, for example, a central political authority with coercive powers on the world stage as in the domestic arena. Thus, the moral landscape, as it were, in which individuals interact and relate to each other in the global setting is quite different from the domestic one. It is a matter of debate (as we shall see) as to what moral significance these relational and institutional facts really have. Some philosophers will argue, for example, that these facts are ultimately morally irrelevant. But that is a conclusion to be drawn. At the getgo, these institutional and relational differences make global justice a special subject.

WHY GLOBAL JUSTICE MATTERS What is the use of global justice? What purpose is this normative inquiry supposed to serve? Most of us agree that we live in a world that is patently unjust, and we

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might think that the central obstacle to achieving a better world seems to be more a problem of political will than of understanding. Indeed, I noted above that this book is organized around familiar problems of justice. But isn’t a philosophical inquiry redundant if the problems are already familiar, and agreed by us to be problems in need of address? Or, even worse, isn’t such an inquiry rather extravagant and indulgent and isn’t the real task before us to change the world, not to interpret it? Yet, to say that problems are familiar and in need of solutions is not to say that we have achieved a full understanding of them and that there is a consensus on how we are to address them. Rather, it means that we can appreciate that these issues raise moral challenges, or that we are at least aware of the questions of justice that could be raised about them. The aim of a philosophical inquiry into these questions is to help illuminate the nature of these problems of justice and to identify possible forms of responses and solutions to them. For example, does justice require that we respond to extreme global poverty? This question might seem straightforward, morally speaking. Yet there is more to it. Even if we all agree that extreme poverty is a bad thing and that something should be done about it, we can still disagree why it is a bad thing, what duties we have in response to it, and what the basis of these duties is. More challengingly, consider the question of whether global justice requires some regulation of global economic inequality. Even though we can understand this question, and debates about economic equality are familiar enough both as a domestic and a global issue, it is far from obvious what the right view is. Some philosophers deny that economic inequality is really a problem of justice, whereas others argue that if there is a case for egalitarianism more generally, then global egalitarianism follows. One purpose of global justice, in this situation, is to force us to examine more deeply what qualifies as a problem of global justice. In this respect, global justice as a philosophical inquiry helps to guard against moral complacency by pushing us to challenge our assumptions and to be on the lookout for potential blind spots in our moral worldviews. It can, in other words, provide a framework from which to see things in a new light and to uncover hitherto obscured instances of injustice. On the problems-driven approach to philosophy, one measure of a philosophical theory’s success is its plausibility and reasonableness as practical guidance for addressing the problems of humanity. To the extent that many of the urgent challenges facing us today are global in nature – such as extreme poverty, climate change and human rights abuses – the success of any moral and political philosophical theory is cast into doubt if it cannot or does not engage with these problems of the world. In short, global justice is a normative inquiry into what we owe to each other globally. That is, it addresses questions of “what ought to be?” rather than questions of “what is”. It is a distinctive subject since the global arena introduces new problems and questions of what we owe to each other. This inquiry matters because its distinctive problems can compel us to reexamine our conventional commitments and standard philosophical theories, and can help expose injustices that we might be blind to.

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JUSTICE AND ETHICS One common view of justice, and this is just one view, is that justice is concerned with how the basic institutions of a social order allocate persons their fundamental rights and responsibilities. So justice is concerned with what we owe to each other, but with what we owe to each other as it is mediated via our shared institutions. The duties of justice then are primarily duties which have to do with the kinds of institutions we should establish, support and maintain. On this understanding, justice can be contrasted with (one interpretation of) ethics, which is concerned with what individuals owe to each other interpersonally. Accordingly, global justice is concerned with the kinds of global institutions we ought to support, and global ethics has to do with our responsibilities to other persons more directly. Thus, the question of our interpersonal responsibility in response, say, to famine is a question of global ethics, whereas the question of what global institutions we ought to establish and support in response to global economic inequality is a question of global justice.2 On this more exacting definition of ethics and justice, this book ought to be titled “What is this thing called Global Justice and Global Ethics?” But this terminological issue need not detain us further if we are clear on what we take “justice” to include. We will take our main question to be that of what responsibilities we have to each other, broadly conceived, institutionally and interpersonally. So long as the reader is aware of the difference (or at the very least this difference can be important in philosophical discussion), our choice of label is less important for the present purpose.

APPROACH AND ORGANIZATION This book introduces students to the subject of global justice by inviting them to engage in the inquiry itself. The book is thus, as mentioned, organized around certain topics or problems of global justice. Through these topics and problems, the reader will be introduced to the main competing philosophical positions and the forms of arguments in support of them. If this book had a subtitle, it would be The Problems of Global Justice. Although I will refrain from explicitly supporting a substantive position over others, I occasionally, within the bounds of a critical introduction, raise more critical questions for some positions than others. But the reader should take this as an invitation to counter my views, and I hope the study questions at the end of each chapter can help facilitate this. What is important is that I present the different positions and arguments fairly and accurately enough (which I hope I am able to do). At the end of each chapter are references to some primary sources that can be seen as companion pieces to the chapters. Since one of my aspirations is to provide a reference book for students in an introductory course on global justice, my list of primary sources reflects the seminal articles and papers that are commonly assigned in such a course. These publications are not necessarily the latest to appear in the literature (although some are recent). Rather, they are seminal works that have set,

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and are continuing to set, the terms of the current debate. Where it might be helpful, I will subdivide these primary references into topics. A list of further reading included at the end of each chapter supplements the primary sources with suggestions for more recent works and writings that have advanced the agenda of the primary publications. My approach within each chapter, for the most part, is to identify the representative positions and the outline of their arguments on a given topic, and not to engage with the details of the particular arguments of specific authors. It is the normative perspective and forms of arguments that certain philosophers represent that I wish the reader to become acquainted with first rather than the specifics of particular arguments. My hope is that readers will be inspired and equipped by our discussion to go on to study the particular arguments of specific authors on their own. Focusing on the big picture in this way, we can better avoid losing sight of the practical problems that drive the philosophical inquiry in the first place. But enough talk on philosophy, methodology and organization. Let us now look at some of the problems of global justice.

NOTES 1 In some philosophical writings, obligations refer to responsibilities that are accrued and duties are responsibilities that are more basic. In this book, we will use the two terms interchangeably. 2 This distinction of subjects is reflected, for example, in the two edited volumes of “seminal essays”: Global Ethics (Pogge and Horton 2008) and Global Justice (Pogge and Moellendorf 2008). Ethics is also commonly understood to include more personal matters, such as one’s conception of the good life, in addition to interpersonal obligations. In this respect, global ethics addresses a subset of ethical questions, the interpersonal question of what we owe to others beyond our borders.

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world poverty According to the World Bank, over a billion people, representing 17 percent of the world’s population, continue to live on less than $1.25/day (the Bank’s baseline for extreme poverty), and about 2.2 billion live on less than $2/day (the baseline for moderate poverty).1 While the World Bank acknowledges that these figures are a significant improvement compared to the past two decades, world poverty remains a major global problem. The implications of severe poverty are pervasive. It results, for instance, in lower life expectancy, poorer health outcomes, and reduced educational opportunities. Life expectancy at birth in countries like Senegal and Malawi is 67.7 and 63.8 years, respectively, compared with 82.3 and 78.9 years for Norway and the United States, respectively. Infant mortality per 1,000 births is 44.2 in Malawi and 43.9 in Senegal, compared with 2.3 and 5.9 in Norway and the United States, respectively. Whereas Norway has 37.4 physicians per 10,000 people and the United States has 24.5, Malawi has 0.2 physicians per 10,000 people and Senegal 0.6. Adult literacy rates in Malawi and Senegal are 61.3 percent and 52.1 percent, respectively, and only 15.5 percent in Niger.2 Few readers would deny that global poverty is a bad thing that the international community should do something about. But what makes it a bad thing that we ought to respond to? What is the source or ground of this responsibility? Who has the moral responsibility to address the problem, and what does this responsibility entail? And what are the limits of their responsibility? So, even if there is widespread agreement that world poverty is a problem of global justice, philosophical disagreements remain concerning the basis of this injustice, which agents have the responsibility to act, and what form this action should take. How we ought to act in response to world poverty as a practical matter will turn at some point on how we address these philosophical questions. World poverty thus presents a case that can be the subject of some philosophical disagreement even though there is relatively widespread acknowledgement that poverty is an injustice. Indeed, examining the different philosophical positions on world poverty can provide a starting point for understanding some of the main moral theories that are at play in the contemporary debate. In this chapter, we will focus on two main ethical approaches to the problem of global poverty. In so doing we can better appreciate how philosophical theories can make a difference to how we understand a seemingly obvious problem of justice, and how we should act in DOI: 10.4324/9780367821531-2

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response.3 The two approaches we will look at are utilitarianism and rights-based deontological approaches.

UTILITARIANISM Utilitarianism is a species of the larger moral position known as consequentialism. Consequentialism, as its name implies, holds that the right thing to do, or the right set of conventions or rules for society to adopt, is that which will bring a favored result or consequence. Utilitarianism, as a species of consequentialism, provides a further specification of what the consequence to be strived for is. While there are variants of utilitarianism, one dominant version invokes the greatest happiness principle, with happiness conceived in terms of a net balance of pleasure over pain. This variant of utilitarianism is known as hedonistic utilitarianism or classical utilitarianism.4 Accordingly, the right thing for a moral agent to do, or the right set of rules or conventions for society to have in force, is that which will produce the greatest amount of happiness for the greatest number of people impartially considered. The point about impartiality is important. It means that the happiness of all, including the agent’s, must count equally. As the dictum famously attributed to Jeremy Bentham has it, “everyone is to count for one, and nobody for more than one” (as cited in Mill 1863, Chapter 5). According to utilitarian morality, then, given that the suffering of the global poor can be alleviated if the global rich redistribute some of their resources and wealth, then it is a moral failure, something that is blameworthy, if the rich fail to do so. We will consider one influential presentation of this argument.

SINGER’S UTILITARIAN APPROACH Peter Singer’s landmark paper, “Famine, Affluence, and Morality” (1972b), offers the most influential argument of this form, and continues to frame the discussion more than three decades since its original publication. Although the impetus of Singer’s essay is the problem of famine and other urgent humanitarian crises – Singer was writing when the Bengal famine of 1971 was in the news – his arguments extend quite naturally to the more general problem of world poverty and the avoidable suffering it creates. Singer’s argument is powerful in its clarity and simplicity. He proposes, for his moral starting point, the utilitarian principle that when we can do something to minimize pain at no comparable cost to ourselves, we ought to do so. For Singer, this means assisting the needy up to the point where we are just marginally better off than they are. There are different ways in which we can discharge our duty to this cause. Singer is not requiring that we each personally deliver goods or resources to individuals in need. As a utilitarian, who is concerned with results, we should seek out the most effective means of improving the situation of the needy. To get the

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“best bang for the buck”, so to speak, we should normally seek out and contribute to effective non-governmental organizations, such as Oxfam and the Global Alliance for Improved Nutrition (GAIN). A utilitarian is not interested simply in altruism but in effective altruism.5 In any case, the basic utilitarian requirement, taken to its logical conclusion, will require each of us who are relatively affluent to adjust our lifestyles and revise our life expectations considerably. What we might take to be a morally legitimate personal expenditure – buying the new upgraded smart phone you have been saving up for – is called into question if the money to be spent could be redirected elsewhere to increase overall utility. Singer provides his famous analogy of the drowning toddler to illustrate this utilitarian principle of effective rescue and to reaffirm its intuitive appeal. Most of us agree, says Singer, that if we could rescue a drowning toddler with minimum risk to ourselves, we ought to do so. No doubt there will some inconvenience to us in the rescue, such as getting our clothes muddy, or even missing an important appointment. But this is a trivial loss, “insignificant, while the death of a child would presumably be a very bad thing”. This precept, as a moral principle, logically extends to distant needy persons whom we can rescue with minimum personal harm to ourselves. Our duty to rescue people in need, short of subjecting ourselves to comparable risks, Singer claims, is unaffected by geographical distance. Proximity is morally irrelevant in itself. Spatial relations clearly matter to the utilitarian when they affect the efficiency or success of a rescue attempt – utilitarians are after all concerned with results. But, as Singer points out, in the modern world, the physical problem of distance is easily overcome by communication, technology, and effective international organizations. If this observation was true in 1972, when Singer first published his essay, it is even more true today. That is, we should not too quickly think that there is a moral difference in the drowning toddler case and the case of global poverty simply because of differences in proximity. The utilitarian approach, guided as it is by its dominant moral goal of maximizing global utility, is clearly rather demanding. Indeed (as Singer himself acknowledges), it seems to eliminate the distinction between charity and duty. We typically think that there are certain morally commendable actions that are good to do but not morally required of us. These are what philosophers call supererogatory actions. Many people will think that contributing to organizations like Oxfam is an act of charity, a supererogation. That is, it is very good if we contribute, but we don’t tend to think that we commit a wrong when we don’t. But utilitarianism says otherwise. Since (as we are assuming) contributing to Oxfam will create more utility, whereas not doing so will permit harm, we are morally obligated to contribute. In this way, it radically revises our ordinary moral categories. Our ordinary moral conventions recognize a class of actions that are supererogatory, actions that are good but beyond the call of duty. Utilitarianism extinguishes this space. Relatedly, utilitarian reasoning implies that actions that we ordinarily regard as heroic or saintly and not obligatory – e.g., self-sacrificing actions that are well beyond the call of duty – are in fact morally required when their performance will increase happiness for all affected. What can

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we make of this? Is this not inconsistent with our conventional moral categories and ordinary moral practices? Some utilitarians are prepared to bite the bullet on this point. If moral conventions are at odds with the requirements of utilitarianism, then so much the worse for conventional morality, they insist. While Singer is agnostic about how pervasively we ought to revise our moral conventions across the board, he is firm that ordinary morality is mistaken in taking humanitarian relief contributions to be optional as opposed to being morally required. After all, historically, many of our traditional moral categories have been proven to be indefensible, and upended with moral progress. So why take the conventional distinction between charity and moral duty to be any different? Isn’t the critical evaluation of our existing and entrenched conventions and moral beliefs a core purpose of moral theories? Moral obligations are meant to impose demands on moral agents, and moral arguments are meant to shake our moral complacencies, including questioning our conventional moral categories and beliefs. So, the claim that it is demanding and fails to line up with our existing moral practices and beliefs can’t, by itself, count as a blow against utilitarianism. But for many critics of utilitarianism, the problem is not that utilitarianism is demanding, but that it is demanding in a way that is fundamentally at odds with human nature. It is demanding in a way that alienates us and the things we think we have reasons to value. Not only is the conventional distinction between charity and duty threatened, but other more basic and seemingly morally salient distinctions are also put under pressure. For instance, on the utilitarian view, our own personal projects and relationships have no special moral significance for each of us. Their value or worth ultimately reduces, instrumentally, to how they further pleasure or minimize pain, impersonally, for the greatest number. On the utilitarian account, favoring the needs of our families or friends over the comparable needs of strangers, let alone their more urgent needs, is a form of parochialism that we should strive to transcend. But does this not make morality demanding in a way that is counterintuitive? Does utilitarianism not fail to take into account our agency and the forms of life we value by dismissing the various kinds of commitments and relationships and projects that are part and parcel of the majority of meaningful human life? For instance, is it morally wrong for you to devote attention and resources to family members or friends when you can produce more utility by redirecting your attention and means elsewhere? Would it be all right for a parent to devote time to reading to her child if she could do more good impartially by attending to her neighbor’s child down the street? What about personal projects that are really important to you? Suppose you are working extra hours to save up for a backpacking trip around the world as a graduation reward. Should you instead donate your savings to a reputable charity? The critics do not claim that our own projects and relationships count for everything and the welfare of strangers for nothing. They only reject the extreme converse claim, that impartial utility maximization is the only thing that matters, and that personal projects and relationships as such are morally dispensable in light of this goal.

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Utilitarians have responded to these criticisms in different ways. Some hard-core utilitarians are prepared to hold the line. Here is a famous example from the history of utilitarian thought. The eighteenth-century philosopher and novelist William Godwin writes that if we could save either the archbishop of Cambray or his chambermaid from a burning chapel, utilitarianism demands that we save the archbishop on the preposition that the archbishop’s survival will have more social utility (Godwin 1793). There is an objectionable classicism and sexism in this example, at least to our contemporary ears. But this is not what makes his argument notorious. It is what follows. He goes on to argue that if I accept the utilitarian reasoning that I should save the archbishop over his chambermaid, then it makes no difference if the chambermaid were “my wife, my mother or my benefactor”. He confidently declares: “What magic is there in the pronoun ‘my,’ to overturn the decisions of everlasting truth?” Most utilitarians, however, are more temperate. They acknowledge that some aspects of ordinary moral practice and relationships are valuable. They will try to dial back towards commonsense morality by arguing that permitting or even requiring people to attend to special relations and personal projects in general will help promote utility for all affected. That is, special moral duties and attending to personal relations are consistent with the utilitarian principle when they serve as effective methods for promoting overall happiness. Some utilitarians will go further and say that the meaningful bonds of affection and attachments among persons are constitutive of, and not just instrument to, human happiness. That is, having meaningful personal ties and affections and standing in special relations to some are elemental to a flourishing human life, and therefore these special concerns and relationships must be factored directly into the utility calculus. The challenge for such attempts at back-pedalling is whether utilitarianism can accommodate these non-utilitarian values in ways that do not mischaracterize the real value of social relations and our reasons for valuing them. For instance, do we regard, for example, friendship purely as means to some other goals? Is the moral worth of friendship fully reducible to social utility? Don’t we think that friendship has value that isn’t wholly expressed in utilitarian terms? These kinds of questions are among the stuff of ongoing debate in the utilitarian literature. Either way, Singer stands his ground on the demandingness of utilitarian theory. If his conclusions are at odds with the conventional distinctions between obligations and supererogation, then so much the worse for conventional morality, he claims. It is worth noting that Singer permits a compromise. If the utilitarian ideal is so demanding as to be unable to gain practical traction, then, he says, we may issue a less demanding requirement. Instead of acting up to the point where we sacrifice something comparable, we need only to act up to the point where we have to sacrifice something that is “morally significant”. If, for example, going to graduate school is a morally significant goal for you, then you are not required to sacrifice this goal for the sake of promoting some utilitarian end. Thus, the modest proposal is less demanding than the proposal that utilitarianism logically requires. Still, it must be noted that this modest proposal is an acknowledged departure from the utilitarian

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requirement. It is not presented as an ideal but explicitly as a practical compromise, a necessary departure from the utilitarian requirement for the sake of achieving a second-best outcome. In principle, Singer remains committed to the conclusion that our global duty to alleviate global extreme poverty requires personal action to the point of global diminishing return. So Singer does not even try to evade but in fact welcomes the overdemanding charge. But what Singer boldly takes to be a feature of utilitarianism, utilitarian critics will regard as a bug. To its opponents, the logical implication of utilitarianism (one that Singer openly embraces) is an indication that it is a mistaken theory of right action. In sum, the utilitarian approach to world poverty appears to its critics to be unreasonably demanding. This problem of demandingness is not just a problem for utilitarianism as applied to the problem of world poverty, but a general problem for utilitarianism itself as a philosophical moral theory. Utilitarianism seems to be shoehorning human beings into a moral theory instead of constructing or identifying a moral theory suitable for human beings. But whether this is so is, of course, a matter of debate. What their critics regard as a reductio ad absurdum of utilitarianism, utilitarians will say is the point and the virtue of their theory. The supposed overdemandingness of utilitarianism, as well as other issues, is a topic of ongoing debate. Utilitarianism is a serious moral theory with its share of defenders and detractors in contemporary moral philosophy, and examining how it applies to the problem of poverty helps reveal its strengths and weaknesses.

DEONTOLOGICAL APPROACHES An alternative moral position to consequentialism is deontological ethics. Deontological moral theories do not derive the rightness or wrongness of an action from the consequences of the act (as in utilitarianism) but from some conception of the rights and obligations that agents independently have.6 One deontological approach to world poverty that is diametrically opposed to utilitarianism takes the respect and protection of basic rights, instead of utility maximization, as the starting point. On this view, persons have a human right to subsistence, and this right imposes obligations on others to act and respond in certain ways. These include not just the obligation to avoid depriving anyone of her subsistence but also the obligation to take positive steps to help ensure that everyone’s subsistence needs are met. An important difference between the rights-based approach and the utilitarian approach to world poverty is that there is a built-in cut-off in the rights approach. If a right that individuals have is the right to a certain standard of living, then our obligations to them with respect to this right are discharged when they are able to meet this threshold. Different rights-based theories can define the threshold of subsistence differently, some being more exacting than others. Thus, it is important not to think that the duty to provide for basic needs is an easily discharged duty. On the contrary, respecting and protecting the right of persons to subsistence will likely

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require some non-negligible “personal sacrifices” from those who are able to assist. The point, however, is that on the rights approach there is a principled cut-off that the utilitarian approach does not admit. A rights approach, in principle, can avoid the inherent “demandingness” problem that complicates things for the utilitarian globalist. The main philosophical challenge for the rights approach is that of establishing the case for a “positive right” to subsistence. A positive right is a right that generates obligations on others to take positive steps to help realize this right. For example, if I say I have a positive right to food, then my right to food generates an obligation on some person to take positive steps to provide me with food or the means thereto. If the big problem with utilitarianism is the problem of unreasonable demandingness in its recommendation for action, the main problem with the rights approach is that of the philosophical contentiousness of its fundamental moral principle. By this, I mean that its basic moral premise involves a controversial claim about moral responsibility that needs to be further substantiated. We can agree that people have “negative rights” that put everyone else under an obligation not to deprive them of these rights. An example of such a right is what some philosophers refer to as a “libertarian right”. This is the right to equal liberty that imposes on others only the “negative” duty to not interfere with another’s freedom without cause. Thus, if I have (only) a libertarian right to food, it means that all other people are obliged not to steal my food or otherwise interfere with my means of procuring food. But no one is obliged to positively provide me with food or the means of procuring it. On the other hand, the claim that persons have positive rights that impose obligations on us to act in some ways (for example, to provide them with subsistence) is more controversial. The right to subsistence is what some philosophers call “welfare rights”. As we have noted, unlike libertarian rights, welfare rights impose “positive” duties on others, that is, duties that require some action on their part rather than mere forbearance. In the first instance, then, it does seem that subsistence rights are relatively controversial and will require some justification. After all, I can understand why I should not interfere with your freedom. There seems to be something intuitively wrong if I were to go out of my way to restrict your options. But why should I be required to actively support you? Why should I go out of my way to see to it that your options are not restricted? This seems like a wholly different matter, morally speaking. The burden of proof why I need not leave you alone seems to fall on me; the burden of proof why I should come to your aid seems to fall on you. Defenders of a rights approach to world poverty can dive into the philosophical thicket of this challenge, arguing in a broadly Kantian spirit, for example, that the principle of universal respect for personal autonomy or agency requires some positive obligations to provide individuals with basic needs, for there is no meaningful exercise of autonomy or agency if one lacks basic subsistence (Gerwirth 1996; Griffin 2008). Others appeal to some conception of human flourishing to make the case positive subsistence rights are necessary to protect the basic capabilities of persons to achieve human flourishing (Nussbaum 1995). These forms of arguments

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get into the core philosophical issues regarding human agency, moral responsibility, and ideas of human flourishing. Arguments of these kinds, that are based on foundational moral claims, are subject to reasonable philosophical disagreements because they invoke moral theories that reasonable persons can reasonably object to. But they are plausible ways of defending the right to subsistence or welfare rights and are deserving of the philosophical attention that they are receiving.

SHUE AND SUBSISTENCE AS A BASIC RIGHT There is, however, another strategy of defending welfare rights that does not directly tackle the philosophical foundational question of why they are positive rights. This strategy attempts to show that there is no fundamental moral difference between (negative) libertarian rights and (positive) welfare rights. So, if we endorse libertarian rights, then, on pain of moral inconsistency, we must also endorse some kinds of welfare rights. Henry Shue, in his seminal Basic Rights (1980), makes the case for the basic right to subsistence along these lines. Shue starts by pointing out that many people accept that the right to security is a basic right because it is a right that one must have if one is to be able to enjoy the other important human rights, such as the right of free speech, the right of association, the right of political participation, and so on. Shue’s next move is to show that there is no morally significant difference between the right to subsistence and the right to security. Like security rights, subsistence rights are basic rights in that they are rights that need to be respected and protected if the rights of persons to other important things are to be exercisable. Thus, if one accepts security as a basic right, then one must, to be consistent, accept subsistence as a basic right. Shue responds to the objection that security rights and subsistence rights must, at bottom, be logically distinct since security rights are negative rights in the sense that they generate only a duty of forbearance, whereas subsistence rights are positive rights in the sense that they require positive acts of assistance. He counters that both security and subsistence rights structurally entail (negative) duties of non-interference as well as (positive) duties of protection and assistance (Shue 1980b). The objection trades on a misconception, he points out, that security rights require only negative duties of non-interference. On the contrary, security rights in fact require positive actions by members of a community, such as the creation and support of legal and enforcement institutional mechanisms pertaining to personal and societal security. The right to subsistence is therefore not unique in its requirements for positive obligations. As with the basic right to security, individuals’ basic right to subsistence can impose corresponding duties on others, not only to avoid depriving them of the means of subsistence, but to also provide assistance to them when their subsistence needs cannot otherwise be met. Shue’s basic goal then is to show that there are logical-structural similarities between the basic right to security and the basic right to subsistence, such that if we accept one, we must also endorse and acknowledge the other. But would the libertarian be persuaded? The libertarian is one who believes that the only duty we have to others

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is to leave them alone, and not to interfere with their freedom. So the basic right to security follows from this duty of non-interference. Moreover, the libertarian can, in principle, allow for derivative positive duties if these are seen as instrumentally necessary for ensuring the right of persons not to be interfered with. A libertarian state can after all be in the business, consistent with the libertarian premise, of providing basic protection and security of individuals, including their property rights. But the libertarian will simply deny, at the ground level, that there is such a right as the right to subsistence that imposes duties on others to provide for this right. Thus, the libertarian will say that there is nothing inconsistent with affirming a basic right to security while denying that there is a basic right to subsistence. There is perhaps therefore a need to confront the libertarian challenge more directly. The strategy of avoidance is a good start but may not allow us to evade the libertarian altogether. Still, the burden of proof can rebound to the libertarian: why are our rights-based moral duties limited to the negative duties of not interfering with or injuring others? While the libertarian premise may seem morally neutral and therefore uncontroversial, it is in fact a morally loaded position, and is as much in need of defense as the opposing view that there are positive rights and duties. That is, the claim that there are only negative rights is not a morally neutral view but is in fact itself a moral position. So we must not assume, as libertarians want us to do, that the “negative right only” position is the default position that needs no justification. Moreover, the international human rights culture reflects widespread acceptance that there is a human right to subsistence and economic development, and that the international community has a moral obligation to defend these rights. Thus from the perspective of the emerging international practice on world poverty, it is increasingly the case that the libertarian position is the one that needs to explain itself.

DUTY TO ALLEVIATE POVERTY AS COMPENSATION FOR HARMS Another influential response to world poverty seeks to escape the philosophical debate over positive and negative rights even more completely. Thomas Pogge (2002b) argues that, even if we grant that there are only libertarian rights, it is still the case that the global rich have reasons of justice to take steps to address the plight of the global poor. His argument for this is that, even if there were only the negative duty not to interfere with others or to injure them, the global rich are, in fact, contributing to and participating in a global institutional structure that has been and is injuring the global poor. Since the basic duty to do no harm has already been or is being violated by the global rich, there is the follow-up responsibility of justice on their part to make amends, including the responsibility to take positive action to alleviate and reduce the harm that has been or is being caused. As just one example, Pogge refers to the World Trade Organization’s (WTO) norms and agreements that are highly detrimental to the poor but highly advantageous to the rich, and that are imposed on the poor by delegates representing the global rich. He writes that the WTO rules allow rich countries to enact protectionist measures

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against cheaper imports from poorer countries, by imposing tariffs, anti-dumping duties, import quotas, and providing subsidies to domestic producers. These measures limit export opportunities for poor producing countries and (through subsidies) give rich countries an advantage in selling their goods in the world market. The main reason for the unfairness of WTO rules is the uneven bargaining power of states at the negotiating table where these terms are ironed out. This passage from the Guardian on the 2011 Doha WTO talks is representative: No sooner was the proposal [that would be favorable to poor countries] announced than the most powerful countries began to resist, with the US in particular demanding benefits to its own economy in return for any concessions to developing countries. This is in part symptomatic of developed countries’ obsession with not giving too much to emerging economies like China, India and Brazil, an obsession that has been allowed to overshadow the development agenda.7 The WTO is just one specific institution that Pogge believes is violating the rights of the poor. The same kinds of criticisms can be made of other global institutions like the World Bank and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) administered by the WTO. There are also more basic ways in which the global order as a whole harms the poor, according to Pogge. He refers to some basic norms of international relations, such as (what he calls) the “resource privilege” and the “borrowing privilege”. These are the privileges, respectively, accorded (by international practice) to any de facto state governments to sell natural resources as they see fit and to borrow money from international and foreign commercial banks at high interest rates. The internationally sanctioned “resource privilege” creates perverse incentives for parties within a well-endowed country (diamonds in Sierra Leone; oil in Nigeria) to take over the government of the country in order to claim resources that it can sell in the global market for personal profit. The “borrowing privilege” enables dictators to borrow money to fund personal accounts and to support military suppression of dissension, and has the detrimental effect of crippling a country with a high-interest debt that is recognized by international banking laws to have been lawfully incurred, even when the dictator has been deposed. These “norms” of international relations are not natural facts, but are conventions that the international community upholds, and upholds to the advantage of affluent countries who now have easy (unquestioned) access to natural resources and whose banks may profit from lending money to corrupt rulers. These background institutional injuries that the global rich are inflicting on the poor have moral implications. The global rich, because of this, owe it to the global poor to reform the global economic order and to provide other forms of protection and aid to the poor in order to repair the harms that they are doing and have done. Pogge therefore claims that the debate concerning our responsibility with regard to world poverty is a “factual” rather than a philosophical one (Pogge 2002b, p. 14). Even if the basic moral duty is merely the modest and negative one of not doing harm, if it can be shown that the global rich are in fact harming the poor, then they have the derivative duty of justice

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to attend to the harms done. For Pogge then, the problem of world poverty is not to be understood in terms of assisting the poor but in terms of not unjustly harming the poor. But does Pogge’s approach evade philosophical controversies entirely? Consider the conception of harm that is presumed in Pogge’s “factual” claim that the global institutional order is unjustly harming the poor. How is this order harmful to some? It cannot be that it is harming some people simply because it is making their lives worse in comparison to some other (previous) arrangement, because, if anything, as Pogge himself acknowledges, the present world order on the whole benefits the global poor more than some previous ones. It cannot be that it is harming some persons because they would have done better living in a pre-institutional condition, or a global “state of nature”, because we don’t have the slightest notion what such a condition would be like. For all we know, it could be a miserable Hobbesian condition of a state of war of all against all, a situation in which human life is “solitary, poor, nasty, brutish and short” (Hobbes 1651). In that case, the present global order must count as an advancement on the human condition. (For a short discussion on the idea of the state of nature, see the Appendix to this chapter.) Pogge, in the end, holds that the affluent are harming the global poor because they are imposing on the poor a global order that is depriving them of access to basic goods when an alternative less restrictive arrangement is available. That is, the present order harms the poor because a more felicitous order could be adopted instead by the rich (2002, pp. 16, 139). Pogge needs to understand harm by way of comparison to available institutional alternatives because he needs to be able to say that the present global order is harming the poor even though it could be superior to the state of nature. But if this is the argument, then Pogge has to explain why the affluent have the obligation to opt for a more propitious global framework over the less friendly framework. In particular, how is this positive duty to offer and support a global order of a particular kind compatible with the libertarian assumption that moral agents have only the negative duty to avoid harming others (Risse 2005; Tan 2010)? On the contrary, Pogge’s conception of unjust harming seems to presuppose a strong positive duty on the part of moral agents to establish and support the institutions that are conducive to meeting basic needs.8 If the above criticism is accepted, then Pogge’s ecumenical aspiration is unachievable. That is, he cannot grant the libertarian moral premise and still say that the global order is harming the poor because there are better feasible alternative arrangements. Why should anyone have the duty to bring about and support such alternative arrangements if the only duties we have are negative ones? What is the basis of this seemingly positive moral duty from the libertarian standpoint? Pogge, if these criticisms stand, is forced back to philosophical discussion, this time over the notion of harm. If so, we might as well confront the libertarian challenge head on and, instead of accommodating it, attempt to deny its premise that we have only negative duties of justice (of forbearance) to each other. To take stock, we introduced three ways a philosopher can make the case that there is a human right to subsistence. One is to argue, at the foundational level, that there

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are such things as welfare rights that impose positive duties on agents. The other is to show that there is no logical difference between the basic rights that we already endorse and defend, and subsistence rights. The third argues that even if the only duty we have to each other is the negative duty of not unjustly harming others, the fact that we are harming or have harmed others triggers responsibilities on our part to take appropriate steps to mitigate these harms.

A DUTY-BASED APPROACH The above discussion introduces deontological approaches to world poverty that are rights-based. That is, we have positive duties to the global poor on account of their deontic right to subsistence. In contrast, other deontologists have argued that the superior deontological approach to world poverty is a dutybased approach, one that begins with and emphasizes duties rather than rights. The duty-based approach claims that the rights approach is not very helpful to the poor because it fails to identify a specific duty-bearer corresponding to each rights-claimant. Under this approach, the poor have the basic right to subsistence and, it is true, this triggers duties on others to attend to their deprivation. But who is the specific agent responsible for discharging the obligation? And what exactly is owed to the claimant beyond the general ­exhortation that her basic needs be met? Onora O’Neill’s writings are representative of this alternate deontological approach. She writes, “enforcement [of rights] cannot be discussed or take place until obligations are identified and allocated” (1991, p. 296; 2000, pp. 135–136). And without this enforceability, basic rights are merely, following Joel Feinberg, “manifesto rights” (Feinberg 1980); that is, they are empty. At best, these rights correspond to “imperfect” obligations on the part of others. Imperfect obligations are obligations that are unassigned and unspecified. So, on the rights-based approach, the criticism goes, although someone has the duty to respond to world poverty in some way, no one in particular can be demanded to act, let alone be responsible for acting in some specific way. Rights are identified, but they are left unfulfilled because the assignment of duties and agents is unspecified. Indeed, O’Neill takes her duty approach to be truer to Kantian morality since Kant’s own moral theory begins from duties and not rights. The challenge posed by the duty-based approach serves as an important reminder that we need to attend to duties in our analysis of world hunger and global justice. Human rights defenders must surely attend to the important business of assigning and allocating responsibilities to promote and protect human rights. In this regard, the duty perspective crucially supplements the rights-based approach to world poverty. But it is less clear if it is a conceptual and analytical alternative to a rights-based approach, as the approach is typically presented. Does the duty-based approach really identify and motivate specific obligations that a human rights-based approach cannot compel? Or are the duty approach and rights approach, at the end of the day, only different sides of the same coin?

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Taking duties seriously can compel us to act. But then, a rights theorist might say, so does taking human rights seriously. An advocate of the duty-based approach might insist that we have duties that are not human rights related, such as the duty to provide subsistence. But would the human rights advocate not ask how this is different from, if not also less effective than, arguing that subsistence is a human right? And if the objection is that subsistence can’t be a human right because there are no assigned actors to take on this responsibility, the human rights defender can reply: “Then let’s assign these duties.” The challenge then is recast as a practical rather than a conceptual one.

SUMMARY The utilitarian and deontological (rights-based) approaches to world poverty have their strengths and weaknesses. The utilitarian approach will appeal to some readers for its simplicity and for the fact that it carries little normative (especially metaphysical) baggage about individual rights. But a major difficulty for utilitarianism, as illustrated in the case of its application to the problem of world poverty, is that it seems unreasonably demanding to some of its critics. A rights approach, unlike the utilitarian approach, allows for a principled cut-off point to any rights-generated duties. In this respect, it is not inherently unreasonably demanding. The philosophical challenge this approach faces, however, is how to justify the existence and the moral force of a right to subsistence. One key challenge for a rights-based approach is the libertarian one, that our moral duties are limited to the negative duties of not injuring, interfering with or harming other moral agents. (We have looked at two arguments – Shue’s and Pogge’s – that attempt to evade, to different degrees, philosophical contentions of this sort.)

APPENDIX I referred to the state of nature quite briefly in the commentary above. Since “the state of nature” is a term of art in political philosophy, it is worth elucidating a bit here. The idea of a “state of nature” is invoked by political philosophers for the purpose of contrasting a pre-institutional and lawless human condition with a lawful social order under a government. In early modern western political philosophy, Thomas Hobbes, John Locke and Jean-Jacques Rousseau are well-known examples of philosophers who introduced the idea of a state of nature to explain why individuals would choose to enter into a social contract with each other to form a political association in favor of the state of nature. For Hobbes, the state of nature is conceived as a condition of “war of everyone against everyone” and in which human life is “solitary, poor, nasty, brutish, and short”. In this perilous condition, where “justice has no place”, individual preservation is never secure. Since only an absolute sovereign with indivisible powers can avert this miserable situation, so Hobbes argues, it is therefore rational for individuals to submit to such an absolute sovereign.

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Locke, in contrast to Hobbes, takes the state of nature to be a “state of liberty but not a state of license”. It is a state in which individuals stand in some moral relationship with each other and are recognized bearers of moral rights. However, there are nonetheless certain inconveniences in the state of nature. The rights of individuals, such as the right to property, remain insecure in a state of nature where there is no authorized protector and enforcer of our rights. Thus, rational and reasonable individuals will agree with each other to leave the state of nature and to form a civil society governed by law. Yet, since the purpose of government is to further and protect the rights of individuals, it would not be rational for individuals to consent to an absolute sovereign, contra Hobbes. What rational individuals would agree to is a limited government. Rousseau has yet another view of the state of nature. For Rousseau, the true state of nature is one of innocence, one in which, if humans are neither good nor bad, they are certainly not vicious. To oversimplify, for Rousseau, one of the rationales for individuals to form a political association through a social contract is that, by creating a state in which we are citizens, we acquire new rights and moral capacities, and are able to live in cooperative arrangements with others while remaining free. Thus, there is no single standard conception of the state of nature. One might say that a philosopher interprets the state of nature as it suits the type of political authority he or she wishes to justify. The key point for our purpose is that there are differing conceptions of the state of nature, as a state of war of all against all at one extreme, to a state of moral innocence at the other. Thus, whether we think individuals are made worse off under any global institutional order than they would be under some imaginary global state of nature will depend on how we ought to conceive the state of nature. The claim that the present global order harms us relative to a global state of nature raises more questions than it answers.

STUDY QUESTIONS 1 Is the utilitarian approach to world poverty objectionably overly demanding of persons who are in the position to respond? Give reasons for your response. 2 Can a utilitarian permit some room for moral agents to pursue ends or activities that aren’t utility maximizing? Why, or why not? 3 Can there be a positive duty corresponding to the right to subsistence? 4 Are security rights and subsistence rights equally basic and morally on a par? 5 What are some advantages and disadvantages of a utilitarian approach to world poverty versus a deontological approach? 6 Which of the two philosophical approaches – utilitarian or deontology – provides better guidance for how we are to respond to world poverty?

NOTES 1 See https://www.worldbank.org/en/topic/poverty/overview. Last accessed December 2019. The Covid-19 pandemic will exacerbate global poverty and “force” many back into poverty.

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2 The gross national income (GNI) per capita for Norway is $68,059, and $56,140 for the United States. For Senegal it is $3,256, and for Malawi it is $1,159. Figures are from the United Nations Development Programme’s Human Development Report 2019 (last accessed December 2019). Available at: http://hdr.undp.org/ en/2019-report 3 For an excellent comprehensive introduction to moral philosophy, see Bennett (2015). 4 The word “Hedonistic” derives from the Greek word hēdonē for pleasure. See Jeremy Bentham (1780) and John Stuart Mill (1863) for the canonical statements of classical utilitarianism. 5 See Singer (2015) on “effective altruism”. See also Singer’s TED Talk, “The why and how of effective altruism” at https://www.ted.com/talks/peter_singer_the_ why_and_how_of_effective_altruism?language=en [accessed 7 Sept. 2016]. 6 See Kant (2008 [1785]) for one classic statement of deontological ethics. 7 “WTO fails the poorest – again”. Available at http://www.theguardian.com/ global-development/poverty-matters/2011/jul/29/wto-doha-fails-poorest-countries [accessed 7 Sept. 2016]. 8 For more discussion on Pogge’s work, see the essays in Jagger (2010). 9 To minimize clutter, for complete bibliographical information on all texts listed in the References and Further Reading sections, see the Bibliography.

REFERENCES9 Onora O’Neill, “Transnational Economic Justice”, in Bounds of Justice (2000). Thomas Pogge, “General Introduction” and “Eradicating Systemic Poverty”, in World Poverty and Human Rights (2002b). Henry Shue, “Security and Subsistence” and “Correlative Duties”, in Basic Rights (1980b). Peter Singer, “Famine, Affluence, and Morality” (1972b).

FURTHER READING Peter Singer continues the discussion in Practical Ethics (2011), and discusses “effective altruism” in The Most Good You Can Do (2015). Nicole Hassoun (2012) puts the case for a duty to address world poverty by arguing that the global order would be illegitimate otherwise, since individuals lacking subsistence could not be said to have consented to that arrangement. Pablo Gilabert (2012) makes a deontological case for humanitarian duties by appealing to the “contractarian” idea that we ought to act on principles that no one could reasonably reject. For discussions on Pogge’s writings, see Jagger’s edited volume, Pogge and His Critics (2010).

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global economic equality Is global economic inequality an injustice? That is, is this inequality a wrong that puts the international community under an obligation to regulate? One response is that economic inequality is an injustice to the extent that it results in the impoverishment of some. That is, if we take world poverty to be an injustice, and if economic inequality causes poverty, we then have an instrumental reason for treating economic inequality as a problem of global justice, and to take action to control the economic gulf between countries. But while inequality and poverty are causally related, inequality and poverty are nonetheless conceptually distinct matters. There can still be great social and income inequalities between countries above some defined poverty benchmark. Consider, for example, that the gross national income (GNI) per capita of Norway is $68,059, whereas for Malaysia it is $27,227, and for Costa Rica $14,790. Both Malaysia and Costa Rica, like Norway, are ranked “High” on the UNDP’s human development scale, but the differences in their national income are significant. This inequality in GNI is associated with social inequalities in other areas of life, such as educational opportunities and health. For example, the average expected length of schooling in Malaysia is 13.5 years, compared with 18.1 in Norway; and the numbers of physicians per 10,000 people for Malaysia and Norway are 15.1 and 46.3, respectively.1 Are the significant differences in income and quality of life between people in these countries an injustice despite the fact that they all belong to countries with “High Human Development”? Is the fact that some persons have better life options than others an injustice per se? This is not just a question of speculative or conceptual interest. Egalitarianism, after all, is a matter of serious debate in public political discourse in the domestic context. Some philosophers believe that economic inequality between citizens in a society can be a problem of justice for reasons besides that of its potential causal connection to poverty. Is economic inequality in the global context a morally salient topic as well? No doubt, the more urgent moral problem remains that of extreme global poverty, but this does not mean that the question of economic inequality is of no practical importance. For one thing, when we identify what justice requires beyond the obvious, we can better guard against potential moral blind spots and complacencies. DOI: 10.4324/9780367821531-3

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Before beginning, it will be useful to clarify some basic concepts. First, a commitment to economic equality does not entail a commitment to equal economic outcomes. That is, it does not mean that everyone must have the same amount of resources (or whatever economic goods the egalitarian might favor) when the dust of redistribution has settled. Indeed, few egalitarians, if any, argue for equality of outcome in this sense. Most egalitarians are egalitarians in that they believe economic inequality ought to be regulated or limited by an appropriate principle of distribution. Typically, an egalitarian distributive principle takes an equal distribution of some economic goods to be the benchmark, and specifies the conditions under which departures from the benchmark of equality are acceptable. (For example, we might take the relevant economic goods to be material resources like income and wealth. At the end of this chapter, we will look at different views on the metric of distribution.) Different egalitarian theories thus offer different explanations for why equal distribution is the default, and propose different justifications for admissible deviations from the egalitarian default. Second, economic equality among persons is distinct from the question of the equal moral worth of persons. Indeed, the more interesting dispute in the literature on economic equality begins from the basic ideal that all persons have equal moral worth and are entitled to equal respect. Where the disagreement with respect to economic equality lies is in how we are to understand the idea of moral equality or equal respect. Does the ideal of equal respect for persons require economic equality among persons? Not all commentators think so. For example, most libertarians would hold that all persons are moral equals. But precisely because they are moral equals, economic equality is unacceptable since that will violate the equal liberty of persons in their property, which libertarians take to be basic. Indeed, the interesting arguments against global economic equality do not deny, but in fact affirm, the ideal of global moral equality of persons. What they deny is that the moral equality of persons entails some commitments of global economic equality. For clarity, following one standard usage, I will use the term “egalitarianism” to refer to the specific ideal of economic equality, and proponents of global economic equality will be referred to as “global egalitarians”. Adopting this terminology, someone can believe that all persons in the world are moral equals, entitled to equal respect, without necessarily endorsing global egalitarianism. Finally, for the moment, the discussion will mostly presume that it is economic resources like income and wealth whose distribution an egalitarian principle seeks to regulate. But the question, “Equality with respect to what?” is a matter of debate within political philosophy and we will comment on this at the end of the chapter.

HOW TO ARGUE FOR GLOBAL EGALITARIANISM Global egalitarians normally avoid reinventing the wheel. Instead of coming up with new arguments for egalitarianism as such, their arguments more typically take the form of modifying and extending available influential arguments for egalitarianism (normally constructed for the domestic case) to the global context.

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There are two broad classes of egalitarian arguments that global egalitarians can exploit. One class of argument takes egalitarianism to be something owed to moral agents as such. That is, duties of egalitarian justice are duties persons have to each other simply as moral beings independently of any particular associative relations they might be in. Let us call this approach the moral conception of egalitarianism.2 The other class of argument takes egalitarianism to be owed only to persons who are in (or ought to see themselves to be in) some relevant type of associative relations, and not something that is owed to persons as such. That is, duties of egalitarian justice apply only among persons participating in the right kind of association, that is, as members of a particular social group, and not between moral persons per se. Thus, in contrast to the moral approach, this one takes egalitarianism as an associationdependent value. This is known as the associative approach to egalitarianism. We will look at these two approaches in turn below. But since some of the main arguments for global egalitarianism are attempts at extending domestic egalitarian arguments to the global stage, it will be helpful to digress briefly to look at one influential theory of justice, that of John Rawls. There are several reasons why we would start with Rawls. First, Rawls’s is the egalitarian ideal that is most frequently adopted by global egalitarians. Familiarity with Rawls’s egalitarianism will provide useful background for some of the global arguments that we will be considering. Second, Rawls’s theory of justice is itself a major contribution to political philosophy and therefore worth getting familiar with in its own right. Third, Rawls himself, in his latest works, when he moves from domestic justice to international justice, explicitly rejects global egalitarianism. Understanding Rawls’s theory of justice will help us to better appreciate one line of argument against global egalitarianism and his own take on global justice (both of which we will be turning to later). Readers who are already acquainted with Rawls’s work may skip ahead to the section on Moral Arguments for Global Egalitarianism.

JUSTICE AS FAIRNESS In his influential work A Theory of Justice (1971), John Rawls offers a social contractarian methodological alternative to utilitarianism, and a defense of a liberalism that takes economic equality seriously. Rawls believes that a society that is regarded as a fair system of social cooperation between free and equal citizens has to be one in which the basic political, economic and social institutions of society that assign citizens their fundamental rights and responsibilities ought to be institutions that each, as free and equal rational agents, could consent to. Under this social contract method then, individuals are presumed to be in an initial contracting situation wherein they are to agree on the principles of justice that are to regulate their basic institutions – what Rawls calls the “basic structure” of society. To ensure that individuals in this “original position” are indeed symmetrically situated in relation to each other (i.e., free and equal), certain conditions have to be introduced. One condition we accept, Rawls believes, is that factors that are “arbitrary from the moral point of view”, such as the social class

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one is born into, the distribution of persons’ natural talents, one’s gender and ethnicity, ought not to “improperly influence” our distributive shares (Rawls 1971b, p. 71). In order to best factor out these kinds of contingencies that can distort our deliberation about justice, Rawls stipulates that parties in the original position put themselves behind an imaginary “veil of ignorance” wherein they are to assume that they have no knowledge of their conceptions of the good life, their social class, their natural talents, their gender and ethnicity and the like. Thus situated, individuals are free and equal in relation to each other qua parties to the contract since none will have superior bargaining power or knowledge of his or her special interests. In the original position, situated behind the veil of ignorance, the parties will rationally opt for the following two principles of justice over standard forms of utilitarianism (Rawls 2001, pp. 42–43): 1 Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all. 2 Social and economic inequalities are to satisfy two conditions:

a they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; b they are to be to the greatest benefit of the least-advantaged members of society (the difference principle).

For instance, utilitarianism could allow for the restriction of the liberties of some if that would indeed increase overall utility for the whole; or utilitarianism could allow the deprivation of material goods for some if this would mean more goods overall for society. But it is not rational for parties in Rawls’s original position to support utilitarianism since any of them could find themselves on the losing side. Rawls’s proposed two principles of justice provide guarantees against such eventualities and thus serve as the more rational option. Since these principles of justice are the outcome of a contracting situation that is fair, Rawls calls his theory of justice, “Justice as Fairness”. Of special significance for the present discussion is the second principle on social and economic inequalities (which we can call the principle of economic justice for short). As stated, this principle has two parts, both of which specify the limits of admissible economic and social inequality among citizens. The first part is the principle of equal opportunity, which requires that any inequalities between citizens (say income inequality) are acceptable only if they are the result of people holding different offices and social roles (say jobs) that are open to all under “fair equality of opportunity”. The second part further specifies that inequalities are acceptable only within a social scheme that is most beneficial to the worst-off class of individuals. To illustrate, imagine that we have before us a range of different feasible socio-economic schemes. To oversimplify, think of each scheme as a scheme with different taxation rates for the upper class. Under each arrangement, there will be varying levels of economic inequality. The “difference principle”, as this part of the second principle is called, requires that we choose the scheme in which the

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worst-off class benefits most in comparison to how they would benefit in the alternative arrangements. While some commentators have attempted to globalize Rawls’s project, as we will see in this chapter, it is important to note that Rawls himself explicitly denies this extension of his method and arguments in his book, The Law of Peoples (Rawls 1999), a rejection already hinted at in A Theory of Justice itself. We will address Rawls’s own reluctance to endorse global egalitarianism in the next chapter. For now, let’s see how some global egalitarians have, in different ways, attempted to globalize arguments for distributive equality, such as Rawls’s, in spite of his own intention. Can the ideal of fair equality of opportunity apply in the global domain? Can there be a global difference principle, such that we ought to create and support the global institutional order (the set of institutions governing trade rules and relations, economic interactions, international law, international property rights and the like) under which the worst-off class of individuals in the world will benefit most?

MORAL ARGUMENTS FOR GLOBAL EGALITARIANISM Let’s now turn to arguments for global egalitarians. The moral conception holds that persons owe egalitarian commitments to each other simply because of their common status as moral agents. One influential argument for egalitarianism as a moral concern is “luck egalitarianism” (see Cohen 1989; Arneson 2011; Knight 2009; Lippert-Rasmussen 2015). As its name implies, luck egalitarianism holds that a distribution of the relevant economic goods is just when it tracks individual choices and ambition, and unjust when it tracks their individual good or bad luck. The intuition behind luck egalitarianism is that while it is acceptable for a person to do better in life because of her hard work or ambition (choice), it is unfair if she has a worse life prospect just because of circumstances outside her control (i.e., bad luck). Thus it is unjust when some individuals do better than others merely because of the social class that they were accidentally born into. Likewise, it is unjust when socio-economic institutions disadvantage or even discriminate against persons based on arbitrary traits like gender and ethnicity. The aim of distributive justice then is to counteract the effects of the myriad contingencies on persons’ life opportunities. Distributive egalitarian principles serve to correct for the differences in persons’ life prospects due to circumstances as well as the misfortunes of life. The luck egalitarian ideal extends easily to the global context. Like social class, individuals don’t choose the countries they are born in. Yet, like social class, indeed more so, one’s country of birth has profound implications for one’s life opportunities. Some countries happen to sit on more natural resources. Others may do better because of better economic institutions and infrastructure that are the result of collective decisions and societal effort, rather than luck as such. Yet, even so, it is still a matter of luck that any particular person is born into a country with these advantages. The wealth that a person inherits may well be due to the efforts of her ancestors, but it is still sheer luck that she is in a position to inherit.

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If justice requires that the allocation of economic goods or opportunities among persons ought not to track their good or bad luck but only their effort and choice, then there ought to be some global distributive principle to mitigate contingencies like a person’s place of birth. Thus, quite independently of the facts of international relations, there is a moral obligation for better-off nations to undertake certain distributive obligations to disadvantaged ones. In his groundbreaking Political Theory and International Relations, Charles Beitz offers a partial extension of the luck egalitarian ideal to the international arena (though the descriptive label “luck egalitarianism” postdates Beitz’s work). In response to the problem of the uneven natural distribution of the Earth’s resources, Beitz refers to John Rawls’s proposal that factors which are “arbitrary from a moral point of view” (Rawls 1971b, p. 71) ought not to “improperly influence” persons’ distributive shares. One example of a morally arbitrary fact for Rawls is the distribution of individuals’ natural talents. That is, it is contingent that one person has a special talent for scientific research that others don’t share; or that a person has a special talent for basketball that is uncommon. According to one interpretation of Rawls, then, one impetus for distributive justice is to compensate for this unequal distribution of talents among persons. Accordingly, Beitz argues that the same consideration applies to the allocation of the Earth’s natural resources. Given the arbitrariness of the spread of the Earth’s natural resources, it is unfair if some individuals do better while others flounder just because they live in countries that happen to be naturally better endowed. Thus Beitz concludes that even if we assume that there isn’t an international order, that states are more or less self-sufficient and don’t interact with each other much, the arbitrariness principle (he associates with Rawls) sufficiently warrants a principle of redistributing the benefits associated with having natural resources. That is, countries that are, by luck, better endowed in terms of resources have the duty of justice to redistribute some of the benefits accruing from their resource holdings to those who are unluckily less well endowed. While Beitz’s implicit invocation of luck egalitarianism is limited to controlling the effects of the maldistribution of natural resources, others more recently, such as Simon Caney (2005a), appeal explicitly to luck egalitarianism to argue for a more encompassing global egalitarian ideal. According to Caney, given that personal opportunities in the world are so deeply influenced by the lottery of one’s citizenship, luck egalitarianism taken to its logical end will require some kind of global principle of equal opportunity. That is, the world should be arranged such that no individual has fewer comparative opportunities than others simply because of the contingency of their place of birth. The luck egalitarian ideal has intuitive appeal to many. It does, after all, appear unfair if someone has to make do with less merely because of bad luck. This point is especially poignant if we think of the bad luck of having some serious congenital illness or disability. Turning our gaze to the world, it seems patently unfair also that some people will have to make do with less simply because of the accidental fact of where they are born. But why should the random event of being born south as opposed to north of the Rio Grande make such a big difference to persons’ life opportunities? If we believe, from the moral point of view, that luck should not have

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such a decisive role in shaping the course of persons’ lives, then justice entails some distributive principles to control for the vagaries of such arbitrariness. It is important to note that the attribution of luck egalitarianism to Rawls is controversial, and the dominant reading of Rawls currently is that he is not a luck egalitarian. Indeed, Rawls himself is quite explicit in his later writings that the reason why egalitarianism matters has nothing to do with the need to mitigate the effects of luck but for reasons of democratic reciprocity. We will turn to this matter in the next chapter. In any case, regardless of the proper (Rawlsian) pedigree of luck egalitarianism, what is relevant is that luck egalitarianism is, in its own right, a forceful account of why egalitarianism matters, and that it provides a powerful basis for global egalitarianism. Luck egalitarianism is not the only moral conception of egalitarianism. A different moral argument for egalitarianism might say that respect for the moral equality of persons implies that each person should have a say in the design of institutions that affect her, and a global institutional order that ignores economic inequalities among persons would be one that some could reasonably reject. But the distinguishing feature of the moral conception is that global egalitarianism is something owed to persons as such, independently of shared membership in a social group or associational ties.

ASSOCIATIVE ARGUMENTS FOR GLOBAL EGALITARIANISM The associative approach denies that egalitarian obligations take hold between persons qua moral beings as such. Egalitarian obligations, on the contrary, are extra-moral obligations in the sense that they apply only among persons who share some form of social associational relationship with each other. So the associativist will reject luck egalitarianism as a plausible basis of distributive egalitarianism since luck egalitarianism treats egalitarianism as immediately relevant among moral persons as such. The associativist does not deny that we can have basic moral duties to make sure that persons are not deprived of basic needs, duties that we can have independently of any common association. But egalitarian obligations belong to a different category of duty according to the associativist view. Egalitarian commitments go beyond the provision of basic needs, and require that inequality in persons’ shares of economic goods or their life prospects be addressed. According to associativists, this additional requirement of distributive equality kicks in only when persons stand in a certain social relation to each other. The relevant form of association that is commonly appealed to by global egalitarians is the idea of fair social cooperation. It is an indication of the richness of John Rawls’s theory that other egalitarians, contra luck egalitarians, take his theory of justice to be representative of an associative approach to egalitarianism. On this associativist reading of Rawls, it is the ideal that society is a fair system of social cooperation among free and equal parties that sparks the move towards

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egalitarianism. Following Rawls in this respect, some global egalitarians attempt to show that the global order can indeed be properly described or appropriately conceived as a system of social cooperation among states which, in turn, represent individuals. They point to trade practices and agreements, international trade laws, and more generally the presence of international law, as evidence that there is in fact a global cooperative scheme. Thus Rawls’s method and reasoning extend straightforwardly to the global domain. We are to imagine a global “original position”, complete with a global “veil of ignorance”, in which the parties to the social contract are to decide on the principles of justice for the global basic structure. The main modification when we globalize Rawls’s method is that among the arbitrary facts the parties are presumed to be ignorant of (behind the global veil of ignorance) is the fact of the wealth of the country they represent or, more to the point, the country they belong to. Thus situated, it will be rational for the parties to insist on and endorse some kind of global egalitarian principle since any one of them can find herself a member of a less well-off country (when the veil is lifted) after the deliberation.3 If Rawls’s arguments are extended in this way, according to some global egalitarians, the outcome is global principles of justice identical to Rawls’s two principles. Indeed, while Beitz makes the case for a limited redistributive principle to counteract the arbitrariness of the distribution of natural resources (as noted above), he relies on the associative reading of Rawls to make the case for a more systematic global egalitarian commitment. He points to different features of our world order – such as trade relations and rules that regulate this relationship, international law, and the like – which suggest that the ideal of social cooperation underlies international relations. Beitz argues, therefore, that Rawls’s method and reasoning globalizes straightforwardly, and his resulting two principles of justice therefore have global scope. In particular, Rawls’s “difference principle”, which states that economic and social institutions are to be arranged to the best benefit of the worst off, applies globally. Global egalitarians need not, however, be necessarily committed to the view that global egalitarian principles are just domestic egalitarian principles writ large. As noted at the beginning of this chapter, what makes a position egalitarian is the presumption of an egalitarian default and the commitment to control deviations from this default. Thus, a global egalitarian does not forfeit her egalitarian stripes if she holds that domestic egalitarian principles and global principles can differ in their content (e.g., Moellendorf). Thus, a difference can be noted between the pattern of distribution (i.e., whether a distribution should be egalitarian or not) and the content of the principle of distribution (e.g., the form of the egalitarian principle itself). A global egalitarian, therefore, can easily allow that global principles have different content from domestic egalitarian principles since the practices and institutions that global principles are meant to regulate are quite different from domestic ones. Some have argued, for example, that the economic practices and institutions that global distributive principles are meant to guide are limited to trade laws, practices and agreements, unlike in the domestic case where economic institutions are more encompassing and determine ownership rights at a more fundamental level (James 2012).

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EQUALITY OF WHAT? RESOURCES VERSUS CAPABILITY What is it that egalitarians should aim to distribute more equally? That is, what is the unit or metric of distribution? In the egalitarian debate, this is known as the question of the equalisandum – Latin for “that to be equalized”. The preceding discussion largely assumes that the equalisandum is resources, broadly construed. We included what Rawls calls the “primary goods” of income and wealth, and other goods such as natural resources, education, and good health, that all persons would need for pursuing whatever ends in life they might have. Egalitarians who take the equalisandum to be resources are called “resource egalitarians”. But is “resource” the most appropriate metric of distribution? Is there another unit of distribution that might make more sense? In the global justice debate, the main alternative to resource egalitarianism is the capability approach (Sen 1979b). Before describing the capability approach, it will help to take note of a third metric that both proponents of the capability approach and resource egalitarians reject. This is the view that an equal distribution of individual well-being or welfare is the aim of distributive justice. This position is commonly called “welfare egalitarianism”. But there are two serious problems with welfare egalitarianism. The first is that it succumbs to the expensive tastes of individuals. What if some people require more resources in order to be as satisfied as others? More problematically, what if their expensive tastes are preferences that they have deliberately cultivated and not due to some unavoidable condition they have? Welfare egalitarianism would require, perversely, that more resources be allocated to them. Second, welfare egalitarianism is subject to the problem of “entrenched deprivation”. An individual adapted to a life of deprivation or disadvantage might need fewer resources to be as satisfied as another who is used to a luxurious life. Equalizing welfare will have the counterintuitive requirement that the person with the adjusted preferences, in light of her deprived circumstance, gets less than the person with higher life expectations. Resource egalitarianism avoids these pitfalls. The aim of an egalitarian distribution is to provide individuals with their fair share of goods with which they can then go on to pursue their ends and satisfy whatever needs they might have. The fact that some have acquired more expensive tastes is their responsibility, and the fact that some have lowered expectations is not held against them. Since certain economic goods are things that everyone needs, whatever their personal preferences might be, egalitarian distributive justice cares only to assign these goods as fairly as possible. What goes on in the minds of persons – their actual satisfaction or happiness – is outside the purview of egalitarian justice. The appeal of resource egalitarianism then is that it is “neutral” with respect to individuals’ preferences and goals in life. While proponents of the capability approach, such as Martha Nussbaum (2001) and Amartya Sen (1979b), also reject welfare egalitarianism, they think that the resource egalitarian goes too far in dislocating egalitarianism from what goes on inside the person. If the aim of distributive justice is to ensure that individuals are

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able to freely and equally pursue their ends (whatever these might be), as resource egalitarians accept, then the fact that different individuals can utilize their resources to varying degrees is crucial. The different conversion powers of individuals with respect to the resources at their disposal means that an equal amount of resources can have different value or worth for different individuals. For instance, a person with a serious disability will be at a disadvantage with respect to a given bundle of resources in comparison to an able-bodied person with an identical bundle. The disabled person will have to expend some of her allocated resources to service special needs (say mobility needs or special health-care needs) that the able-bodied person does not. Thus, her effective resource share is, for this reason, in fact reduced. What is fundamental then, according to capability theorists, is not one’s share of resources, but one’s capability to turn a given set of resources into meaningful use. Since the disabled person needs more resources to achieve the basic capability (say for mobility) than able-bodied persons, a concern for people’s free and equal capacity to lead lives of their choosing will require that we direct more resources to the disabled. The moral impetus for capability comes from the concept of human flourishing and achievement, or human “functioning”. Whereas Sen eschews proposing a universal and objective set of human functioning, Martha Nussbaum believes that there are various human functionings that are not subject to cultural variation, such as living a normal life span; having adequate nutrition, good health, and shelter; enjoying relationships and associations with others; forming and pursing a conception of the good life, and so on.4 But both believe that it is the capability to achieve these human functionings that is basic for distributive justice, not the realization of human functioning itself. This is because, in the name of freedom, it has to be up to individuals whether or not to achieve a certain functioning once they have the capability to do so. For example, a person with the capability to acquire adequate nutrition may wish, instead, to go on a religious fast even though she has access to food. The difference between this person and another who is malnourished because he lacked access to food is in that the former has the requisite capability but not the latter. Distributive justice demands only the proper allocation of capability, not the actual realization of functioning since this is left up to individuals to achieve. The capability versus resources debate has important implications for the debate on global egalitarianism. The capability approach prompts a different comparative measure of how countries perform from that which focuses solely on economic goods, such as national wealth and income. A country which scores higher in terms of national income per capita than another country can also be one in which her citizens face lower life expectancy, a more degraded natural environment, polluted air, greater economic and gender inequality and fewer educational opportunities. Is the average individual in the higher income country necessarily better off than people in the lower income country? Many of us would think not. The capability approach tells us that to have a fuller picture of how people in different countries are doing comparatively, we need to look at more than just a country’s per capita income, and be attuned to other features of individual flourishing.

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Indeed, inspired by Sen’s capability approach, the United Nations Development Programme uses a composite index in its development ranking of countries. The Human Development Index reflects a multidimensional view of human development, taking into account, in addition to gross national income per capita, the life expectancy of its citizens, their average number of years of schooling, economic inequality, gender and political inequality, and other nonincome aspects of poverty.5 This approach gives us a very different view of how countries fare than if we were to rely solely on gross national income per capita. For instance, Qatar, with the highest gross national income per capita of all countries at $110,489 is ranked 41st on the Human Development scale when other factors of life quality are included, such as gender equality (for which it ranks 45th on the “gender inequality index”). 6 Thus, it makes a real difference to how we understand and address global inequality, depending on whether we use a narrow resource metric of human development or a multidimensional one. The other implication of a capability approach, interestingly, is that it can tilt away from global egalitarianism (again here understood as the view that equal distribution is the default, departures from which must be justified) to the position called global sufficiency. Many capability theorists believe that what distributive justice demands is that each person acquires an adequate or sufficient level of capability, not that each should have an equal amount of capability. To be able to realize human functioning requires only that individuals attain some threshold capacity, such as a sufficient level of health and nutrition, a certain level of educational achievement, and the like. There is no compunction to require that each individual has an equal level of capability (such as an equal level of health or educational attainment) beyond the sufficiency threshold. Thus, Gillian Brock has argued against global egalitarianism in favor of the idea of global sufficiency because of her capability starting point (Brock 2009b). Indeed, in political philosophy in general, most capability theorists subscribe to the position known as sufficientarianism. This is the view that the just distributive form or pattern is that which ensures that individuals have a sufficient or adequate amount of whatever the currency of distribution is, as opposed to an equal amount. That is, if we answer “capability” in response to the question “Distribution with respect to what?”, we are likely also to answer “sufficientarian” in response to the question “What is the sought for pattern of distribution?” Resource egalitarians have responded that the capability approach reduces to resource egalitarianism once we begin to operationalize capability. How else do we distribute capability but by distributing resources and related opportunities? Also, resources can cover the things that capability is concerned with – such as differences in personal capacities to achieve ends – if we adopt a broader view of resources to include personal resources like one’s talents, abilities and the like. Moreover, other resource egalitarians like Rawls believe that variation in personal capability can be taken into account when principles of resource distribution are implemented as policy. For example, when we implement distributive policies, the disabled person’s

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special needs can be taken into consideration. These are matters of ongoing discussion in contemporary political philosophy, and we will unfortunately have to leave it at that here. For the present, what is important is that even if we grant that resource egalitarianism identifies the right metric of global distributive equality, what the capability challenge has alerted us to is the fact that a proper understanding of global equality will require a more holistic understanding of the resources that matter, besides a country’s income and material wealth.

SUMMARY The basic strategy of the global egalitarian is to extend general arguments for egalitarianism (or more precisely arguments constructed for the domestic context) to the global context. The global egalitarian holds that there is no relevant normative difference between the global arena and the domestic arenas and so consistency requires the application of domestic egalitarian arguments to the global context. Thus, if the reason why egalitarianism matters among citizens in a society stems from the obligations that persons owe to each other qua equal moral agents, then egalitarianism matters globally among persons as well. Or if the case for domestic egalitarianism turns on some associative facts about shared citizenship, some global egalitarians have attempted to show that these facts also obtain in the global setting. A significant difference, however, between the domestic and global domains is that in the latter it is states that interact with each other rather than individuals directly. Still, it is important not to overstate the difference here. After all, individual relations within a state, and their interactions qua citizens, are also mediated by institutions. In the global plane, in contrast, individuals mostly engage and relate to other citizens through their respective states. The presence of states may pose some complications for the extension of egalitarian reasoning to the global plane but many global egalitarians do not ignore the presence of independent states and the fact that states are among the primary actors in global affairs. They can acknowledge, for reasons of feasibility and efficiency, that global distributive equality in its implementation must focus on equality between states in the first instance. But, for the global egalitarians, what ultimately matters is egalitarianism among persons. Egalitarian distribution among states will be seen as instrumental to, or an approximation of, equality among individuals. However, this understanding of the moral relevance of states for egalitarian justice is contentious. Some egalitarians have argued that it is only within the context of a state that egalitarianism commitments gain moral salience. The state, in other words, is not merely a vehicle for affecting egalitarianism but is in fact constitutive or formative of this obligation. Accordingly, since there is no global state or the equivalent thereof, global egalitarian arguments don’t even get off the ground. We will consider some of these objections in the next chapter.

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STUDY QUESTIONS 1 Is global economic inequality itself a potential problem of justice? If so, on what grounds? 2 Must egalitarian distributive justice presuppose an existing system of social cooperation? Is there such a scheme of cooperation at the international level? 3 What would it take for a global distributive principle to be implemented? Does this presume a world governing body? 4 Is natural resource inequality a cause of international economic inequality? And, if so, is this natural fact itself a problem of justice? 5 What is it that egalitarians should seek to distribute fairly? Is it individual wellbeing? Individual access to resources and opportunities? Or their capability to convert resources and opportunities into effective freedoms?

NOTES 1 These figures are from the United Nations Development Programme’s Human Development Report 2019 (last accessed January 2021): http://hdr.undp.org/sites/ default/files/hdr2019.pdf 2 The contrast is not that the other approach is amoral. The label is meant to reflect the idea that egalitarianism is an obligation that derives directly from the equal status of moral agents. 3 The last step might appear indistinguishable from luck egalitarianism. But there we can note a key difference. The argument is motivated by the ideal of social cooperation, whereas luck egalitarianism has life independently of such facts. 4 See also “Women’s Capabilities and Social Justice”. Available at: http://philosophy.uchicago.edu/faculty/files/nussbaum/Women’s%20Capabilities%20and%20 Social%20Justice.pdf [accessed 7 Sept. 2016]. 5 See the commentary on pp. 2–3 of the UNDP Human Development Report 2015. Available at http://hdr.undp.org/sites/default/files/2015_human_development_ report.pdf [accessed 7 Sept. 2016]. 6 These figures are from the UNDP Human Development Report 2019. http://hdr. undp.org/sites/default/files/hdr2019.pdf

REFERENCES RAWLS John Rawls (excerpts), A Theory of Justice (1971b).

GLOBAL EGALITARIANISM Charles Beitz, Political Theory and International Relations, Part III (1979b). Simon Caney, “Distributive Justice”, in Justice Beyond Borders (2005).

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Darrel Moellendorf, “The Borders of Justice”, in Cosmopolitan Justice (2002b). Thomas Pogge, Realizing Rawls, Part III (1989b).

EQUALITY OF WHAT? Gillian Brock, “A Cosmopolitan Model of Global Justice”, in Global Justice: A Cosmopolitan Account (2009b). Martha Nussbaum, “The Central Capabilities”, in Creating Capabilities (2011b). Amartya Sen, “Equality of What?” (1979b).

FURTHER READING See Samuel Freeman’s Rawls for an authoritative and comprehensive introduction to John Rawls (Freeman 2007). Pablo Gilabert defends a non-associative approach to global egalitarianism, which he calls “humanistic cosmopolitanism” (Gilabert 2012). For a sustained discussion of justice and trade, see Aaron James’s Fairness in Practice (James 2012). See also Mathias Risse, “Justice and Trade” (in Risse 2012); and the critical summary by Helena de Bres “Justice and International Trade” (de Bres 2016). Laura Valentini (2011) defends global egalitarianism that does not simply apply domestic egalitarian principles to the world, but that is circumscribed by the special institutions and practices of the global order. See Chris Armstrong, Global Distributive Justice (2012) for a critical introduction to the topic. For a novel thesis that equality of human flourishing is that which matters (and not capability for flourishing), see Sypnowich (2016).

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global egalitarianism: objections and replies In the previous chapter, we discussed some arguments in favor of global egalitarianism. But global egalitarianism has its share of detractors and, in this chapter, we will consider some of the main arguments against globalizing egalitarian obligations. One could be against global egalitarianism by opposing egalitarianism tout court. For instance, a libertarian will naturally dismiss global egalitarianism since she rejects egalitarianism altogether. While the libertarian position is, of course, important and deserves attention, to engage it here takes us too far afield from our special topic of global justice. In order to focus on the unique egalitarianism debate within the special subject of global justice, we will attend to arguments that specifically target global egalitarianism without necessarily denying egalitarianism in general. Indeed, the positions we will look at are those that affirm egalitarianism within the just state, but deny its relevance at the global level. This asymmetry is what makes the antiglobal egalitarian position especially interesting and philosophically intriguing. As we will see, some of these arguments compel us to engage with the basic question of why we should be egalitarians at all. The anti-global egalitarians we will consider do not say that foreigners have less than equal moral standing relative to compatriots. If this were so, their arguments would be easier to refute. The more challenging anti-egalitarian positions do not deny that persons have equal moral standing regardless of nationality or citizenship. They accept that, in virtue of the moral equality of persons, we have the duty of global justice to assist those persons who are unable to meet some defined standard of basic needs (as discussed in Chapter 2). What the anti-global egalitarians deny is that there is a duty to regulate economic inequality above this threshold of sufficiency. Their basic claim is that moral equality alone does not entail egalitarianism. DOI: 10.4324/9780367821531-4

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AGAINST EGALITARIANISM AS A MORAL IDEAL Opponents of global egalitarianism reject the idea that egalitarianism is a moral obligation that takes hold straightaway among moral equals (unless they wish to implausibly deny that foreigners are our moral equals). Why should the fact that one is worse off but not impoverished create obligations on others (the better off) to address the difference, they will asks? In the absence of some further explanation, such as certain associative ties or past history, egalitarianism seems unmotivated. Moreover, to insist on it, they argue, will result in certain absurdities. First, the moral case for egalitarianism seems unmotivated because it is not obvious that we owe each other egalitarian duties simply by virtue of our equal moral standing. It is relatively less controversial that the ideal of moral equality is violated if we ignore human suffering due to a lack of basic needs. So, the anti-global egalitarian can acknowledge that moral equality requires some attention to the subsistence needs of all persons. But why should equal moral respect entail the further requirement that we owe each other egalitarian obligations? How is the fact of economic inequality per se a violation of moral equality? Egalitarianism might well follow from equal moral respect, but this is not a logical entailment. Second, the moral conception of egalitarianism, if granted, can result in absurdity. Imagine that we come across a new group of moral beings. (To make the case as compelling as possible for the egalitarian side, let us imagine them to be like human beings as far as possible.) The moral beings are not impoverished but are doing fine by some objective standard of well-being. They are, however, less well off than us. Should we now take on distributive commitments to them? Not only would this seem unmotivated, but it is seemingly absurd, some would argue, since it implies that there is no principled limit to our distributive egalitarian duties. Anytime some person or group less well off than us appears on the scene, we immediately incur some debt to that person or group. Let’s recall the luck egalitarian idea, as discussed in the last chapter, to illustrate the above two points. Unsurprisingly, many opponents of global egalitarians are explicitly skeptical of luck egalitarianism. What is the basis for the luck egalitarian ideal that equal life prospect is the moral default unless an agent’s own choices dictate otherwise? Why should equal respect for persons require sensitivity to the luck/choice distinction? Indeed, the luck/choice distinction seems metaphysically fraught. How can we determine how much a person’s success in life is due to sheer luck and how much is due to her effort and commitment? To the extent then that the luck egalitarian project hinges on this distinction, it rests on shaky metaphysical grounds. Moreover, luck egalitarianism has absurd outcomes if we follow through on its fundamentals. For instance, it would say that persons who are severely deprived because of their bad choices are not entitled to our assistance. But this seems counter-intuitive (Anderson 1999). Typically, we do not believe that we can neglect to assist a person just because her desperate situation is the result of her bad choice rather than luck. Also, along the lines noted above, luck egalitarianism will require egalitarians to work

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overtime since luck factors across different areas of a person’s life. Should a person who is unlucky in love be the beneficiary of some social compensation, if we even know what this could consist of? The idea of mitigating the effects of luck seems a non-starter. These objections against luck egalitarianism have ignited a lively ongoing discussion in the literature. If it turns out that luck egalitarianism cannot be defended against these objections, then it cannot serve as a reliable basis for global egalitarianism.

AGAINST GLOBALIZING ASSOCIATIVE ARGUMENTS Many anti-global egalitarians take egalitarianism to be an associative obligation. For them, egalitarianism does not take hold among moral persons as such, but between persons who stand in some associative relationship with each other. But, unlike associative global egalitarians, they deny that the relevant associative relations are present in the global context to jump-start egalitarian considerations there. Underlying their position that egalitarianism applies domestically but not globally is the belief that there is something special or unique about the state as an association. We will look at two kinds of arguments in turn. The first says that egalitarianism is a means of legitimizing the necessary coercive authority of the state. Since there is no coercive authority of this kind that needs legitimization in the global domain, egalitarian arguments don’t even get off the ground. The second says that it is social cooperation of a specific sort that generates egalitarian commitments. Since the global arena lacks this form of social cooperation, there is no basis for adopting egalitarian commitments.

THE COERCION ARGUMENT To locate the distinctiveness of the state, some commentators have stressed that an important difference between the state and the global arena is that the former is an ongoing and legal coercive order. That is, the state is an entity that is able to lawfully exercise force over its citizens and has the authority to determine their legal rights, entitlements and obligations. It is this fact of lawful coercion that generates egalitarian commitments among members of a nation-state; and because there isn’t a lawful global coercive authority, there is no similar reason for caring about global equality (Blake 2001b; Miller 1998). One important line of argument draws on the idea of autonomy, in that since lawful coercion is, in the first instance, autonomy restricting, it must be justifiable to those being coerced if the lawful coercion is to be legitimate (Blake 2001b). Such an arrangement would be justifiable, on this account, if significant special consideration is given to fellow members. One such special consideration is that of not allowing for arbitrary inequalities among members. That is, a coercive order is acceptable in spite of its restrictions on autonomy if it is tempered by some institutionalized

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distributive egalitarian commitments among all persons living under the arrangement. For example, the civil laws that society enforces, laws that determine contractual rights, ownerships, taxation and so on, are prima facie restrictions on persons’ autonomy, and this system of coercion is legitimate only if can be acceptable to all, in particular to those who are most significantly relatively disadvantaged (ibid.). This presents a consideration in favor of mitigating the situation of the worst off under this arrangement via some egalitarian distributive arrangement. Thomas Nagel (2005b) has developed a version of the coercion argument which incorporates another associative element that explains why coercion of members presents a special problem of justification in the domestic case. (This move is important to those who might be tempted to think that domestically enacted laws can be coercive of outsiders as well, and hence the coercion argument for egalitarianism would also apply to outsiders.) This additional element is the notion of “joint-authorship” of the laws of one’s society, or the implication of one’s will in a political system in which one participates. Unlike the coerced outsiders wanting to get inside, insiders aren’t simply coerced. Rather, they are coerced by a system of which they are also joint-authors. That is, they are living under a shared coercive system whose establishment and maintenance “engages” their will, and whose legitimacy consequently must turn on their acceptance of this arrangement. That is, this is an arrangement under which those subject to it are supposedly also its authors, and thus whose arrangement must reflect their will. It is only among joint-authors of a coercive arrangement, Nagel argues, that the demands for legitimacy can be made. On Nagel’s reasoning, as in the coercion argument, one necessary condition for mutual acceptability is that no arbitrary inequalities be admissible, thus triggering the basis for distributive equality.1 But, for Nagel, since there is no global coercive order that is also regarded as the joint project of all persons, there is no basis for global distributive demands. A system may indeed be coercive of some persons, but if the system does not also engage or implicate their will, they have no moral standing to ask for any justification of that arrangement. Objections to global inequalities simply do not gain any traction because the concern for legitimacy in the global plane does not arise in the same way as in the domestic case. The coercion argument is thus a two-step argument: it first makes a normative claim that egalitarian justice commitments are triggered under the condition of state coercion; and it makes a second, empirical, claim that the global order is not a coercive order in the relevant sense. Thus, in evaluating this argument, we can ask separately: is the normative premise defensible? And is the empirical claim verifiable? We will return to this matter in the section on Assessing the Arguments below.

THE SOCIAL COOPERATION ARGUMENT The second class of arguments against global egalitarianism emphasizes the ideal of reciprocity or social cooperation in the state over the fact of coercion. As we saw earlier, some global egalitarians also accept that social cooperation is the starting

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point for egalitarianism, and they see their task to be that of showing how the global institutional order is in fact ideally conceived as a cooperative one. But some critics have pointed out that this is a misdirected application of the cooperation argument. The state is a cooperative entity in ways that the global arena is not, even if ideally conceived, and it is this difference that explains why egalitarian obligations take hold domestically but not globally. The state is a cooperative system that governs the economic life of participants in ways that the global domain does not do. The state dictates the terms of ownership, of transfers, of contracts; makes laws regulating wages and income and work hours, and so on (Freeman 2007a). It also provides the basic economic infrastructure for economic activities and transactions to take place, such as law and order, roads, postal and communication services, methods of adjudicating disputes and enforcing contracts, the educating of a workforce, etc. Under the cooperative system of the state, individuals are more deeply entangled economically and thus more mutually obliged than they are in the global context (Sangiovanni 2007b). In fact, the success of anyone within an economic system cannot be understood without attribution to the social and economic background conditions that the state creates and sustains, and which members of society contribute to and participate under. Participants in a shared economic system, so understood, thus stand in a special kind of cooperative or reciprocal relationship. It is the ideal of reciprocity under the context of economic cooperation that motivates the case for egalitarianism – that is, it requires that the gap between the advantaged and the disadvantaged under the arrangement be regulated in certain ways. The steps from reciprocity or cooperation to egalitarianism have to be filled in. Basically, it will have to be shown, for example following Rawls, how the requirements of social cooperation and its implications will take us eventually to conclusions about our egalitarian obligations. But, for our purpose, the important point is that, according to the cooperation argument, there is no similar motivation for global egalitarianism. The global arena is not a cooperative system of this kind, and so does not compel the same requirement of reciprocity. The social cooperation argument, like the coercion argument, is a two-step argument. It first makes the normative claim that social cooperation is what activates egalitarian obligations among persons; then it argues that while the state constitutes a cooperative arrangement of the sort that gives rise to egalitarianism, the global arena does not. Persons don’t stand in the same kind of reciprocal or cooperative relationship with each other internationally. Similarly, an assessment of the soundness of this argument can tackle the two premises in turn: Is the normative claim a plausible one? And is the empirical view of the world correct?

ASSESSING THE ARGUMENTS The thrust of the main arguments against global egalitarianism is that egalitarianism is animated by certain normative conditions that are found in the setting of the state but not globally. Egalitarian obligations don’t arise between persons as such without these triggering conditions, contra views such as luck egalitarianism. As mentioned,

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the arguments turns on a normative premise regarding the circumstances of egalitarianism, and an empirical premise regarding the state of the world. Now one might accept the normative premise of the anti-global egalitarian, but challenge its empirical premise that the circumstances of egalitarianism don’t obtain globally. For instance, some commentators have argued in response to the coercion argument that the global order is a suitably coercive one for the purpose of generating egalitarian obligations. Trade conventions, international norms and laws restrict individual and state conduct globally, and such restrictions are often backed by sanctions of varying kinds, such as trade retaliation, withdrawal of cooperation, imposition of embargos, and even military intervention in cases of extreme transgressions. It is often pointed out as well that what appears as an instance of domestic law making, such as immigration policies, has coercive implications for individuals at large. Borders keep people out and are protected by armed guards. Even Nagel’s version of the coercion argument, which invokes the idea that only citizens have the standing to demand of each other some justification for their shared coercive arrangements, can be challenged as an empirical matter. Is it the case that there are no globally coercive institutions that are properly thought of as the joint creation of individuals in the world? It is true that individuals need not directly support and design global institutions. More typically it is states (and other collectives like NGOs) that are directly engaged in the formation of global institutions. Still, to the extent that states are supposed to represent and speak for their own citizens, individuals can be seen as joint-authors of global institutions even if their choices are expressed through their state institutions. Can this point not put some pressure on Nagel’s empirical claim about the uniqueness of the state? The same goes for the argument from cooperation. The cooperation argument points to economic institutional facts and laws, such as property rights, contract laws, laws regulating transfers and transactions and the like, to show why egalitarianism applies within the state. Are there not similar economic institutions within the global arena? Could one argue that international laws and norms regulating territorial rights, ownership of natural resources, and the international intellectual property rights regime are examples of global institutions and laws that establish and define ownership? Is the economic success of one country really so detached from and independent of a background international economic structure? Even if the empirical premise of the anti-global egalitarian position is sustained, its conclusion does not follow if there is a suitable alternative to its normative premise. The form of the normative premise common to the arguments we have considered is that there must be certain political institutional features that are necessary for activating egalitarian commitments. That is, egalitarianism is a political ideal – an ideal applying to persons who share certain forms of political life – rather than a moral ideal, an ideal that applies to persons qua moral agents as such. But is it the case that egalitarianism is triggered only where there is state coercion that has to be justified? Is it the case that this coercion needs to be justified only to those who are regarded as joint-authors of the state’s institutions? Or, tackling the argument for cooperation, is it the case that social cooperation is a necessary

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circumstance of egalitarianism? In general, are there additional motivating reasons for egalitarianism other than the fact of coercion or the ideal of cooperation (even if we grant that coercion or cooperation sufficiently motivates egalitarian commitments)? Does the fact that institutions can affect or impact persons, as global institutions do, sufficiently motivate egalitarian principles to regulate these institutions? One place where this inquiry can take us is back to the moral conception for egalitarianism. Is it really the case that moral relations alone cannot ground egalitarian obligations? Consider the opposition to luck egalitarianism. It is true that the force of certain objections has put the ball back in the luck egalitarian’s court. But this cannot be the last play, and some egalitarians are attempting to revise the luck egalitarian ideal. If there is a plausible interpretation of luck egalitarianism that can fend off these criticisms, then a moral grounding for global egalitarianism can be restored. In short, the main anti-global egalitarian arguments rest on two necessary premises, one that specifies the necessary condition for egalitarianism, and another that describes the state of international relations to show that this condition is not realized globally. The ongoing debate is whether these two premises can be sustained.

INDIRECT ARGUMENTS FOR EGALITARIANISM: RAWLS’S LAW OF PEOPLES As mentioned, some global egalitarians take themselves to be extending Rawls’s theory of justice to its logical end, whereas some anti-global egalitarians take these to be a misapplication of Rawls’s method and arguments. In The Law of Peoples, Rawls explicitly opposes the global extension of his egalitarian principles. He holds that a global duty of assistance, a duty to ensure that all societies are able meet the basic needs of their citizens and have the means to support wellordered institutions of their own, is all that is needed by way of international economic justice. That Rawls rejects global egalitarianism is not itself a decisive blow to Rawlsian global egalitarians for it is reasonable and not without precedent for philosophers to argue that a complex theory has applications and implications beyond or even in opposition to what the author of the theory himself or herself holds. Thus, to close, it will be useful to consider Rawls’s own rejection of global egalitarianism. One argument that Rawls makes against global egalitarianism can be described as an argument from national self-determination. He tells us to imagine two societies starting off equally well off, with an equal amount of resources, comparable population size, human capital, and the like. But one society invests in its economy in such a way that, over time, it becomes twice as well off as the other. A global egalitarian principle will require some redistribution of resources from the better-off society to the less well-off one, but Rawls says that this would be “unacceptable”. Presumably the reason why it would be unacceptable is that we would be requiring a society to subsidize another which is less well off because of its choices. Indeed, this amounts

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to our penalizing the better-off society for its superior decisions and hard choices. In another case, Rawls imagines a similar starting scenario but with the difference this time that one society engages in population control and the other does not. Holding all other growth rates constant, one society will over time be richer than the other per capita. Yet the global egalitarian would require redistribution between the two and again this seems “unacceptable”. But it seems that Rawls’s self-determination argument works only if we already presume that there is no prior global egalitarian obligation. After all, if there is an antecedent obligation of egalitarian justice, then it is not the case that complying with it undermines self-determination. For example, we can’t say that even though paying our domestic taxes is an obligation of justice, this obligation violates individual self-determination. This is because, as seems most plausible, the admissible space for self-determination is defined in terms of what we owe to others, not the other way around. In fact, Rawls has another, more basic, argument against global egalitarianism that frames the self-determination argument. The argument is that the reasons for egalitarianism are indirect in the sense that egalitarianism serves or is tied to other moral objectives that we have. These indirect reasons obtain domestically but not globally, Rawls argues. In fact, reading Rawls’s own theory of justice in light of his remarks on international justice provides a renewed understanding of Rawls’s basic project and method. It has become even clearer, for instance, that Rawls is not a luck egalitarian since egalitarianism is not something that exists between moral persons as such, but is motivated by considerations relevant to common citizenship. The first, indirect, reason why we care about economic inequality in the domestic context, Rawls identifies, is that we want to prevent persons from falling into poverty. Since there is a global duty of assistance within Rawls’s law of peoples (that goes beyond helping persons to meet their basic needs to enable them also to support decent functioning institutions), the problem of poverty within the global arena is addressed without the need for economic equality. As mentioned at the start of Chapter 3, it is worth considering whether egalitarianism matters for justice independently of the problem of poverty. But Rawls’s argument is that even if we focus on poverty, there is no reason why global economic justice requires egalitarianism in the way that domestic egalitarianism is tied to poverty. The presumption here seems to be that in a more closely entwined market, unmitigated inequality can result in the impoverishment of some. This is, of course, a very plausible point – in a given market where people compete for the same goods, the more another has, the easier it is for her to outbid me in the competition for goods, and I can become impoverished when necessities become out of my reach in this way. But is it the case that the global market-place is not one where inequality can matter in this way? Do people not complete for similar goods or resources? Global demands for cash crops like coffee, compete for and claim scarce arable land that could otherwise be used to cultivate food crops. Thus, differences in global purchasing power can contribute to the actual impoverishment of some communities.

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Another indirect reason Rawls discusses is that unregulated inequalities between persons within a state can result in the social stigmatization of the less well off and, consequently, the corrosion of their basis of self-respect. Yet, Rawls believes, economic inequality between persons across state boundaries need not have such effects. When all societies are regarded as equal and free members of a well-ordered international arena, and in the presence of a duty of assistance to ensure that all societies are able to maintain functioning institutions, no society or persons will be socially stigmatized or feel less worthy just because some countries are richer than theirs. The presumption here seems also to be that more tightly economically entangled social orders constitute significant comparison or reference groups for individuals that would make economic inequality a salient factor. Americans may care about how they fare in relation to other Americans; and Mexicans to other Mexicans. But, for Rawls as it seems, Mexicans do not compare themselves in this way with Americans. The question that needs to be pursued further is whether it is the case that the global economic order does not constitute a comparison group in which inequality matters; within which, that is, it matters to persons or societies how they fare in relation to other persons or societies in the global arena. One might suggest, contra Rawls, that telecommunication, the internet, the global reach of the arts and culture (such as films and television shows), etc. make it more likely that inter-state or cross-border comparisons will matter more and more to persons. We will need more empirical research to be able to settle this argument. Rawls’s other reason why economic inequality matters within the state is that it can undermine the fairness of political processes. It is a commonplace among observers that economic inequality within a society threatens democracy. Candidates for public offices with greater financial power are better able to win attention and garner votes, and affluent lobbyists and other interest groups can influence the political agenda. Thus, to help maintain political fairness in domestic society, Rawls believes we have an obligation to limit inequality among persons. But there are no analogous political processes in the global domain that would be corrupted by economic inequality, the argument implies. Again, as Rawls puts it, all societies, so long as they are well-ordered – economic inequality notwithstanding – can participate as free and equal participating members in the law of peoples. Again, the interesting question this argument raises is highly complex and will require more empirical research into how international organizations work in practice. For example, consider the fact that the number of votes a country has within the International Monetary Fund depends on its financial contribution to the organization, which in turn depends on its wealth.2 Is this or is it not an instance of unfairness in political processes in the international arena? Or consider the more blatant case of how inter-governmental aid and economic assistance can exert pressure on less welloff countries during international deliberation and decision-making. Again, is this a case of the ways in which economic inequality can compromise political fairness on the global plane?

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In addition to the indirect reasons for egalitarianism having to do with the problems of poverty, stigmatization and political fairness, Rawls also hinted at another, namely the ideal of reciprocity, under his discussion of the mitigation of poverty as a reason for controlling inequality. He says that the gap between the rich and poor in domestic society cannot be “wider than the criterion of reciprocity allows” (Rawls 1999b, p. 114). But this invites the question: Why does domestic reciprocity, in particular reciprocity between democratic citizens, require the limiting of economic inequality among individuals, but international or global reciprocity does not? Rawls does not say much about this in The Law of Peoples, although his other writings suggest that reciprocity between citizens has a special quality because of the cooperative and democratic nature of their relationship. Indeed, the argument from cooperation we canvassed above is an attempt at explicating and working out this special requirement of reciprocity among democratic citizens. Depending on how we unpack the ideal of democratic reciprocity, we can be led back to the question of why that ideal applies only domestically and not globally.

SUMMARY Critics of global egalitarianism typically deny that egalitarian obligations obtain between equal moral agents as such. What activates these obligations are additional claims or facts about associative relations among persons. These associative claims or facts are, however, peculiar to the circumstance of the state and are not present in the global arena. Some argue, for example, that the coercive character of the state is the distinguishing feature that triggers egalitarian commitments among citizens; others prefer to highlight the cooperative character of the state, in particular in its economic institutions. These can also be seen as ways of explaining why there is a special requirement of reciprocity among citizens that could place limits on economic inequality among them but no similar requirement among persons at the global level. These criticisms raise different issues for global egalitarians and identify different courses of response. For example, global egalitarians can examine further whether it is really the case that egalitarianism is an associative obligation and not an obligation that could take hold between persons (in the world as a whole) as such. Or, if they grant the associative approach to egalitarianism, they can try to show that the relevant egalitarian triggering features obtain at the global level as well. The problem of global egalitarianism has perhaps received more attention in the current literature on global justice than other questions, since it engages one of the staple issues of political philosophy, that of distributive justice and economic equality. While there is as yet no resolution to this dispute – if anything the anti-global egalitarian side seems to be gaining momentum – it has in fact inspired investigations into the conditions under which egalitarianism matters. The result is, so we will hope, a more complete and sophisticated understanding of the circumstances of egalitarian justice. So, even if the dispute at the global level remains at an impasse, this enhanced philosophical clarity counts as advancement. The subject of global

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egalitarianism is a good illustration of how political philosophy makes progress when it confronts new problems or questions, even when it is not yet able to offer solutions or answers.

STUDY QUESTIONS 1 Must egalitarianism presuppose some associative ideals or facts among the relevant agents? 2 Is luck egalitarianism an implausible conception of egalitarian justice? 3 Is state coercion a necessary condition for egalitarianism? 4 Is the ideal of social cooperation a necessary condition for egalitarianism? 5 Is the global order a coercive order in the relevant sense required for triggering egalitarian duties? 6 Can the global order be conceived as a fair system of social cooperation? 7 Are the common indirect reasons for why egalitarianism matters domestically inapplicable at the global level?

NOTES 1 Because cooperation (as expressed by the idea of joint-authorship of laws) seems to play an important role in Nagel’s argument, some commentators have classified his argument as an argument based on cooperation rather than coercion. But it seems to me that Nagel’s position is better seen, fundamentally, as an argument from coercion since it is on account of coercion that egalitarian obligations are generated, albeit coercion in the context of cooperation. Nagel’s arguments for example, do not apply to a cooperative but non-coercive context. 2 See the voting power chart at: https://www.imf.org/external/np/sec/memdir/ members.aspx (last accessed 11 March 2016).

REFERENCES Michael Blake, “Distributive Justice, State Coercion, and Autonomy” (2001b). Samuel Freeman, “Distributive Justice and the Law of Peoples”, in Justice and the Social Contract (2007). Thomas Nagel, “The Problem of Global Justice” (2005b). John Rawls, The Law of Peoples, Part III (1999b). Andrea Sangiovanni, “Global Justice, Reciprocity and the State” (2007b).

FURTHER READING See Carl Knight and Kasper Lippert-Rasmussen for recent defenses of luck egalitarianism. Laura Valentini and Nicole Hassoun argue in different ways that the global

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order is coercive in a morally significant sense. Blake replies to his critics in his Justice and Foreign Policy (2013b). Mathias Risse, On Global Justice, provides further arguments for the special status of the state with respect to egalitarian justice (Risse 2012). David Reidy, “Rawls on International Justice” (2004) defends Rawls’s rejection of global egalitarianism.

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nationalism and patriotic sentiments PRINCE FEISAL:  T.E. LAWRENCE: 

You are an Englishman. Are you not loyal to England? To England, and to other things.1

The last two chapters canvassed arguments for and against global egalitarianism. But there is another powerful consideration against global egalitarianism that we have left out, and this is the argument from nationalism and patriotic concern. (Or, to be precise, this was an argument we looked at only obliquely, and briefly, in our remarks on the self-determination argument we attributed to Rawls.) The challenge is that global egalitarianism lies in tension with the value of national self-determination and the ideal of patriotic sentiment. A self-determining nation has to determine its own collective projects and goals and take responsibility for them. Global egalitarianism seems to contradict national responsibility if nations are also to take responsibility for how some nations are faring relative to others. Moreover, global egalitarianism seems to be at odds with the patriotic sentiment that individuals are entitled, if not even obliged, to show special concern for their conationals or fellow citizens. That is, the moral impartiality underlying the ideal of global egalitarianism appears contradictory to the permissible (if not obligatory) moral partiality implied in nationalism and patriotism. Yet surely not all instances of national partiality are permissible. “My country right or wrong” forms of nationalism put paid to any decent notion of global justice and are difficult to defend. So the claim of the nationalists and patriots is not that global egalitarianism leaves no room for xenophobic versions of nationalism. Their claim, more moderately, is that it seems that there must be some scope for justifiable expressions and exercise of national self-determination and patriotic concern, and that it is not clear how a firm commitment to global egalitarianism can accommodate these. For instance, it does not appear immediately unjust that the Canadian government supports a public health-care system that can provide quality care but DOI: 10.4324/9780367821531-5

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only for Canadians (and long-term legal residents of Canada). On the contrary, this partiality seems permissible, if not in fact required, as a matter of domestic justice. If so, how is partiality of this sort compatible with the demands of global egalitarianism? And how can we distinguish permissible forms of national self-determination and patriotic partiality from unjust ones? The problem of nationalism and patriotism generalizes beyond the specialized problem of global egalitarianism. At its root is the philosophical tension between the moral universalism of global justice on the one hand, and the moral particularism of nationalism on the other hand. Indeed, the problem of global justice and nationalism is an iteration of a deep question in moral philosophy: how should the universalistic and particularistic features of morality be reconciled? Is morality ultimately universalistic and ought particularistic commitments be reduced to and justified by universal principles or moral objectives? Or is there, ultimately, a fundamental tension within morality itself, between its universalistic and particularistic strains? Examining the debate between nationalism and global justice can provide one entry point into this moral philosophical question. In this chapter, we focus on the idea of liberal nationalism. Is it an oxymoron? Or can some forms of nationalism be liberal in character, and, if so, what are the conditions for a liberal nationalism? Then we examine whether nationalism is a value. We will finally look at the challenge of patriotism for global egalitarianism, and close with some remarks on nationalism and cosmopolitanism.

THE PROBLEM OF NATIONALISM: A LIBERAL NATIONALISM? What room is there within a conception of global justice for nationalism? We need not belabor the point that historically, and even presently, nationalism has been a source of various domestic and international injustices, including the subjugation of minorities and even genocide within states, and wars of conquests and annexation. Not surprisingly, for some liberals, nationalism is anathema to the moral core of liberalism. Nationalism’s focus on individuals’ national identity and the collective good of the nation is at odds with the liberal ideal that the individual is the basic subject of moral concern and entitled to equal respect regardless of her background characteristics, such as national membership. Moreover, nationalist sentiments seem irrational and morally arbitrary, and hence no more philosophically defensible than racist expressions and sentiments. Without denying that nationalism has been the source of great (past and prevailing) injustices and that nationalist demands are often framed in ways that contradict basic liberal values, some liberals have nevertheless argued that there is nothing inherently illiberal about nationalism. For them, nationalism can be liberal or illiberal in character and it is too hasty, according to these liberal nationalists (as we can call them), to condemn nationalism tout court.

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One of the liberal nationalists’ rationales for identifying a permissible form of nationalism (which liberal nationalism is supposed to be) is that they believe state nationalism to be an inescapable feature of a political life. The basic institutions of the state cannot help but reflect a certain political cultural identity, centered on a sense of shared history, public traditions and practices. A citizenry is not just a gathering of individuals pursuing their private ends, but an association of individuals who see themselves as members of a distinctive society that is committed to certain shared goals. To this end, the state must be in the business of inculcating in its citizens some sense of mutual identification through education, institutional practices and, as Rogers Smith puts it, the creation and telling of “stories of peoplehood” (Smith 2003). If nationalism is an integral part of statehood, then the issue is not whether to allow or condemn nationalism per se, but to identify the bounds of its permissibility. Differentiating liberal forms of nationalism from illiberal ones is one way of doing this. Some liberal nationalists make the distinction between civic and ethnic nationalism (Ignatieff 1993). Ethnic nationalism is a nationalism based on descent and heredity. It is therefore an exclusionary form of nationalism, since individual membership in a nation is ascribed rather than voluntary under this model. It is relatively clear how a form of nationalism that equates “belonging” with “blood” is fundamentally at odds with liberalism, especially if membership status or the lack thereof determines one’s basic political rights and social entitlements. In contrast, civic nationalism is a nationalism based on shared commitments to the principles of liberal political morality and is thus inclusive, in that it is inclusive of anyone prepared to embrace a liberal political constitution or culture. The patriotic ties that bind members of a civic nation together are not based on ties of descent but on a joint commitment to the political culture and constitution of that nation. Some commentators refer to this as “constitutional patriotism” (Habermas 1992b). Yet other liberal nationalists believe that civic nationalism has erred too far in the opposite spectrum of ethnic nationalism. These liberal nationalists (e.g., Tamir 1995; Miller 1995; Kymlicka 2001b) acknowledge that a nationality that is hereditary and ascribed cannot be liberal in character. But they also believe that civic nationalists, by stripping away the notion of ethno-culture entirely from their conception of nationalism, rescue nationalism for liberals at the cost of rendering nationalism sterile, if not unrecognizable. Nationalism involves more than just a shared commitment to principles or values or a common constitution, they argue. Nationalism proper entails individuals sharing a conception of a collective identity centered on a public culture and language, a common history and a collective conception of themselves as a distinctive people. For these liberal nationalists, the notion of civic nationalism is a rather bloodless, and therefore mistaken, concept of nationalism. It misses the essential element of nationalism, namely that sense, among persons of a nation, of shared historical and cultural belonging and distinctiveness. Moreover, as critics point out, the concept of civic nationalism trades on a mere myth that there can be a culturally neutral conception and practice of nationalism. As Will Kymlicka points out, meaningful forms of nationalism must involve the

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promotion of certain national cultural characteristics, such as a public language, public institutions, conventions and practices, and shared founding stories and cultural histories. Significantly, it also means that members of a national community consider themselves to constitute a distinctive people or historic community. On this understanding, the United States, for example, which is commonly cited as a real world example of a civic nation, is not ethno-culturally neutral. Although there is no official language, English is the lingua franca, required for official positions and civil service; its public institutions and practices reflect an Anglo and JudeoChristian cultural tradition. The civic versus ethnic nationalism divide, thus, cannot capture the real distinction between liberal and illiberal nationalisms. What makes nationalism a liberal nationalism is not its aspiration to ethno-cultural neutrality, but how it conceives of its shared ethno-culture and how it goes about promoting it. In short, a nationalism based on notions of racial descent cannot be liberal and, to the extent that ethnicity is sometimes seen to be coterminous with race, we have reasons to be suspicious of ethnic nationalism. But an ethno-culture need not be racially defined. It can be defined in terms of language, social practices, rituals, customs, and an understanding of common history that can be adopted by individuals rather than properties which are thrust upon them. If all forms of nationalism must have some ethno-cultural content, then what makes a nationalism liberal or illiberal in practice is not whether it is ethno-culturally neutral or not, but the way it understands its ethno-cultural identity, the content of this identity and how it goes about promoting that identity. One condition for a liberal nationalism, according to Kymlicka, is that state nationalism must avoid imposing unreasonable demands on minority cultures. One way any potential unreasonableness is alleviated is by granting minority groups certain kinds of minority cultural rights to counteract the effects and implications of state nation building.

IS NATIONALISM A VALUE? Is nationalism a potential but unavoidable vice that we should try to make as palatable as possible? Or are there reasons to commend nationalism as well? Liberal nationalists argue that nationalism is not merely compatible with liberalism. They make the stronger claim that nationalism is actually valuable or a virtue from the liberal standpoint. For instance, they argue, that nationalism makes possible the realization of the liberal ideals of personal autonomy, distributive justice and democracy. First, membership of a cultural community provides individuals with the “context of choice” within which to form, pursue and revise their ideas of the meaning and the good in life; that is, within which to exercise their personal autonomy (Kymlicka 1995). It is within a cultural framework that individuals see value in their ends and projects. To the extent that nationalism protects this cultural structure of personal autonomy, it is valuable. As Alasdair MacIntyre writes in his defense of the virtue of patriotism, outside my cultural community, “I am unlikely to flourish as a moral agent … . Without community, there are no standards of judgment. Patriotism gives those standards” (MacIntyre 1984b, p. 10).

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Second, shared national affinity provides the impetus and rationale for citizens of a society to accept and take on distributive obligations among themselves. Why should persons be convinced and be motivated to share in the fate of their compatriots unless they also see themselves as fellow members in a community of fate? In modern political societies we can’t count on the intimate ties of kinship or tribal affiliations to motivate the commitments of social justice. Instead, nationality provides the ties that bind and motivate. It encourages individuals to see each other as members of an “imagined community” (to borrow Benedict Anderson’s (1993) apt phrase), as a moral community in which persons take themselves to be mutually indebted and obligated to one another. Third, national affinity and the common language it supports make possible deliberative democracy. Deliberative democracy requires a certain reasonableness on the part of citizens, in how they make demands on each other, in their willingness to concede to better arguments, to compromise for the sake of tolerance and so on. It requires that citizens be willing to forward proposals that are respectful and be willing to meet other deliberators halfway out of a sense of mutual respect and of the common project they are all engaged in. Shared nationality provides the fuel for this. Moreover, deliberative politics, in Kymlicka’s words is “politics in the vernacular”. What Kymlicka means is that democratic deliberation requires a common language in which individuals can engage with each other. Some critics of nationalism take national affinity to be irrational, as a form of identification based on passion and sentiment rather than reason. But defenders of liberal nationalism would remind these critics that merely because a pursuit or project cannot be fully rationally defended to everyone does not imply that it is valueless or unworthy of consideration. Religious commitments and ideals of the good life aren’t the sort of things that can be rationally defended universally. Yet we don’t immediately condemn religious expressions and practices as meaningless or invaluable or a vice. But can something that is not rationally defensible be morally justifiable? Again, taking religion as an analogy, the fact that religious commitments cannot be rationally defended does not make it unjust to pursue those commitments. What makes religious practices just or unjust is not their rational basis but whether they conform to background standards of justice. That is, what makes a pursuit just or unjust is not whether it can be rationally defended to every philosopher’s satisfaction, but whether it is pursued and realized in compliance with the requirements of justice. Liberal nationalism is just such an attempt to show that there can be forms of nationalism that are consistent with the requirements of liberal justice. The reasonable concern of skeptics of liberal nationalism is that, as mentioned, nationalism has been the source of much vice in human history. In this regard, the non-rational basis of nationalism carries a special burden of proof or justification (unlike that of the non-rationality of personal pursuits). Moreover, one element of nationalism is the idea that conationals are entitled to special consideration and are beneficiaries of special obligations that other individuals in general are not. (We will turn to this particular problem next.) Thus, while liberal nationalism has its stalwart advocates, it should by no means be regarded as an uncontroversial position.

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PATRIOTISM AND PARTIALITY There is a feature often associated with nationalism that presents a particular difficulty for global egalitarianism. This is the idea that individuals are entitled, if not obliged, to care more for their compatriots. This idea of patriotic concern, as we can call it, need not be tied to nationalism. Some commentators would argue that patriotic sentiment can exist among members of a state quite independently of any underlying nationalist identification among them. But what is relevant for our discussion is that patriotic concern – whether it is nationalistically grounded or not – seems to contradict the global egalitarian ideal that all persons are entitled to equal consideration. Global egalitarianism is a particularly strong view of what global justice demands. As we saw, global egalitarianism not only holds that all individuals are entitled to equal respect, but claims that, on account of equal respect, all individuals are entitled to some form of global economic equality. The challenge of patriotic concern is thus most pronounced when directed against global egalitarianism, and in investigating how global egalitarians could address this challenge, we should also be able to account for the less difficult cases. An immediate retort available to the global egalitarian is: “So much the worse for patriotic concern then!”. That is, the global egalitarian could stand firm by her commitments and if there is a prima facie tension between these commitments and other values, the latter are to be rejected. There is nothing special about patriotic ties and concerns. To the contrary, they are forms of prejudice and short-sightedness that we should try to overcome. This form of response is analogous to William Godwin’s argument (1793; see Chapter 2) in his discussion of utilitarianism, that if you ought to rescue the archbishop of Cambray over his chambermaid because that will produce the best outcome, then you ought to do the same even if the chambermaid happened to be your sister or spouse. There is nothing morally significant in the pronoun “my”. Yet, if global egalitarianism requires the wholesale rejection of patriotic concern, we might be inclined to fault global egalitarianism as a mistaken view of global justice. After all, any conception of justice that condemns special or personal concern of other kinds – like friendship and kinship – could be accused of being out of touch with humanity and human values, and consequently unfit for human beings. This will be the problem many commentators, including utilitarians, find with Godwin’s bald-faced rejection of relationship and special concern. Patriotic ties are, of course, unlike ties of friendship and kinship in that the latter are intimate and personal ties. But rejecting patriotic ties as unjust merely because they involve partiality is premature. Indeed, what the case of friendship and kinship suggests is that we look at how conceptions of justice deal with these more familiar forms of partiality, and see if a parallel can be drawn for the case of patriotic concern. Thus, many global egalitarians would argue “back”, in the same way that, for example, utilitarians could try to argue back to account for and accommodate friendship and kinship within the utilitarian framework. For example, utilitarians could hold

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that although utilitarian morality is fundamentally impartial and impersonal, special concern for friends and family is defensible because special concern of this kind will in fact in the long term produce more utility for society as a whole. Indeed, they can make the even stronger argument that more good will result if individuals in fact fully internalize these special commitments, and take them to be valuable in themselves, even though objectively (from the utilitarian perspective) these are only useful instrumentally. But even if individual actors do internalize these special commitments, these special commitments are objectively only instrumentally valuable. They are justifiable only because they provide a division of labor that allows for the most efficient production of good for all involved. Accordingly, following a similarly structured argument, some global egalitarians could attempt to argue that special concern for compatriots can be seen as a division of labor in this sense. By permitting individuals and their state institutions to care specially for compatriots, if not further inculcating individuals to in fact endorse these commitments as valuable in themselves, the end of global egalitarianism will be better served or realized. Thus, if we allow Americans to attend specially to the egalitarian needs of other Americans, Canadians to those of other Canadians, and the British to other British, then we have a division of labor that will more effectively realize our goals of global justice, rather than if we were to require all individuals to attend to the needs of everyone at large. The reasons why this division of labor is more efficient can be easily inferred. Through a combination of proximity, shared history, participation under common institutions and laws, compatriots know each other’s needs better than outsiders do. They also have clearer information on the specific problems that their compatriots face, and proximity and shared institutions allow for their efficient solution (e.g., Goodin 1988b). One problem with this argument is that it does not follow that patriotic concern will always result in the desired outcome. In the case of America, Canada and Britain, it does seem plausible that leaving each to focus on the needs of their own could provide an effective division of moral labor since each country is relatively capable of providing justice to their own members, each is relatively well resourced and so on. But dividing our moral obligations along patriotic lines surely cannot be efficient if we throw into the mix countries that are less well off. Would we be able to say that global justice will be best realized if Americans look after their own, and Somalis try to do the same even though their country faces serious economic challenges? The division of labor argument seems to fail as a general justification for patriotic concern in our world. However, this could be turned into an advantage for the division of labor argument. Its proponents have made a case for why patriotic concern is valuable and what its limits are: it is valuable because it can be an efficient mechanism for discharging or fulfilling general global obligations; and it is impermissible at the point where patriotic concern does not, in fact, service global goals. A more serious problem for the division of labor argument is that treating patriotic ties as (objectively) only instrumentally valuable, provides a mistaken account of the value of these commitments. Some philosophers hold that, as social beings, we not

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only find meaning and value in certain forms of social life, but that our actual flourishing ordinarily entails some participation in social relationships like friendship and kinship. The division of labor is incorrectly “reductive” in that it explains the value of special relations and special obligations wholly in terms of some general moral good. This way of accounting for special obligations strips special relations and concern of any intrinsic value they might have for human beings. Nationalist theorists extend these observations about special relationships to patriotic ties, and hence argue that attempts to accommodate and limit patriotic concern by reference to some greater global value mischaracterize and under-appreciate the value of patriotism. For these theorists, just as it is implausible (pace some utilitarians) that the special concern parents have for their own children is justifiable wholly because encouraging this special care is how the welfare of all children in society is best maximized, so too they argue that it seems implausible that patriotic ties are of value only because a general global good is best realized by encouraging this form of partial concern. Those who claim that patriotic relations are of intrinsic value will have to show that there are certain relationships that are indeed valuable in this way, and that patriotic ties are one of them. One might be prepared to accept that some special relations, like friendship and kinship, are valuable in themselves, but deny that patriotic relations, being impersonal and large scale, are valuable in the same way. But if there are special relations and concerns that are valuable in themselves, then it is possible that patriotic relations count among these. So, granting the moral significance of patriotism, what follows for global egalitarianism? Not all defenders of patriotism go on to say that compatriots take priority always in all cases. What they will say is that the ideals of global justice are shown to be more complex than global egalitarians would have us believe. We cannot simply assume, with regard to egalitarian justice, that the world is a single social scheme in which all persons are entitled to equal economic entitlements or rights. Patriotic ties should be taken into consideration and this can muddy the reasoning considerably. What most commentators hold in the end is that while we do have duties of global justice to help ensure that persons, regardless of nationality or citizenship, have the means of subsistence, there is no duty of economic equality to all persons (D. Miller 2007). The division of labor argument rescues global egalitarianism but by deflating the significance of patriotism; the moral significance argument restores significance to patriotism but undercuts global egalitarianism. Is it possible to have it both ways? Here, it is helpful to examine how egalitarian justice addresses and accommodates more familiar forms of special concern in the domestic case. For instance, few if any domestic egalitarians deny that friendship and kinship are permissible relations and forms of expression. Moreover, not many will be reductive about these ties by arguing these are permissible or encouraged only because they serve egalitarian goals. For instance, John Rawls does not say that individual conceptions of the good (in which familial and other relational ties surely do play a part) are justifiable only if they promote or help to realize social justice. Instead, the only restriction from the perspective of social justice is that our conceptions of the good do not violate or undermine the requirements of justice. That is, the principles of justice set the parameters

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that define and limit the space for admissible pursuits (Brock 2009b; Tan 2003 and 2004; Nathanson 2017b). But beyond this, no further justification is required. It is up to individuals to attach whatever moral significance they want to their ideas of the good life. Naturally as rational agents, we would hope that our own overall form of life would be coherent and consistent. But there is no requirement that we justify our conception of the good to others in any particular way. That is, there is no requirement that we must see our ends in life as being in the service of the greater goal of social justice. What is important is that partiality has to be constrained by principles of justice, by the considerations of what we owe to each other at large. This way of seeing national partiality can be described as a “moderate”. The moderate patriot, as Stephen Nathanson points out, allows for the special promotion of the wellbeing of conationals but only by “means that are consistent with the rights of people in other countries” (Nathanson 2017b). The more interesting and relevant issue is the moral constraints that partiality should be subject to, not the grounds for partiality. In other words, we can maintain the primacy of global egalitarian justice without necessarily stripping patriotism of its moral significance. What the primacy of egalitarian justice insists is only that, however these patriotic ties are grounded and conceived, they be expressed and exercised within the parameters defined by global egalitarianism. Just as a show of friendship in domestic society should not violate the terms of egalitarian justice – I cannot withhold paying my taxes in order to benefit a friend – so too patriotic commitments ought not to violate the terms of global egalitarian justice. But, just as this primacy of domestic justice does not mean that the value of friendship is reducible to the ideal of egalitarianism, so limiting patriotism against global egalitarianism in this way does not mean that we must treat patriotism reductively. The debate will perhaps further unfold in this way: unlike friendship, patriotism is a special kind of relationship that in some political societies includes taking on obligations of distributive justice towards each other. Thus, unlike friendship, patriotism gives rise to a domain of egalitarian justice that will compete with the domain of global egalitarian justice. But in reply, why should the fact that patriotic relations create justice demands of their own negate justice demands in other contexts? It does not seem plausible that by unilaterally taking on new relations of justice to some that I then get to release myself from existing obligations of justice to others. Forming a private association with its own internal dictates of justice does not obviate the requirements of justice that apply in the larger domain within which private associations operate. Rather, most of us would say that this private association is a subset of the larger domain of justice and so it remains bound by the demands of justice applicable in the larger set. Whatever obligations we would like to see ourselves as having towards fellow members of our private associations, these obligations are constrained by the requirements of justice in force in society as a whole. Likewise, whatever patriotism requires of persons, these requirements are circumscribed by the requirements of global justice. Thus, if there is an independent case for global justice, patriotic commitments and their moral significance do not, on their own, block off these demands.

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The form of the argument above is the following: if there is a case for global egalitarianism, the claim that patriotism is itself morally significant cannot undermine it. It might well be that patriotism makes it impossible to argue for global egalitarianism. For example, one might say, specifically against globalizing Rawls’s method, that specific patriotic ties are not the sorts of things that one could assume ignorance of at the (global) original position. But we will need to know why that is, why patriotic ties are unique from other kinds of special relationships. Alternatively, one could argue that patriotism provides the ties and mutual identification that make egalitarianism a commitment in the first place, and hence there is no such thing as global egalitarianism, given the obvious absence of global patriotism. But this argument takes us back to the considerations raised in the previous chapter about the circumstances of egalitarian justice. In this respect, the case might well be made that, absent patriotic relations, there can be no egalitarian justice. What is clear, however, is that this is a different challenge from the one originally raised, which is that patriotic commitments present a limitation to global egalitarianism. If there are independent reasons for embracing global egalitarianism, patriotic ties do not limit its commitments.

COSMOPOLITANISM AND NATIONALISM It is often thought that cosmopolitanism is at odds with nationalism. Cosmopolitanism, after all, affirms the ideal that all persons are entitled to equal respect, so must dismiss, some believe, nationalism as an obstruction to that ideal. To the extent then that global justice is also cosmopolitan justice, global justice must be skeptical of nationalism. It will be appropriate then to close this chapter with some reflections on cosmopolitanism versus nationalism. The term “cosmopolitanism” has different meanings in the global justice literature, and while some conceptions of cosmopolitanism might well be in tension with nationalism, others need not. So, to assess better the claim that cosmopolitanism and nationalism are at odds, one needs to further specify “cosmopolitanism with respect to what?”. If cosmopolitanism is meant as a conception of individual moral identity, that is, that persons should basically identify themselves as members of humanity rather than of any sub-group, then it would be in a state of conflict with nationalism, which allows that nationality can be a primary source of identification. Or, if cosmopolitanism is understood as an affirmation of a world government or world state, this might tell against nationalism to some degree. But if cosmopolitanism is a claim about the scope of egalitarian justice, then there is no necessary tension between that and nationalist demands. In this case, it is possible that, on the one side, we take egalitarianism to be a global ideal while holding, on the other side, that national identity and partiality are important and valuable pursuits. Just as a conception of domestic egalitarianism need not renounce familial partiality or partiality among friends, but only require that these partial pursuits be

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confined by the demands of egalitarian justice, so too cosmopolitan justice, so understood, can allow and even acknowledge the value of nationalism consistent with the commitment to global egalitarianism. In short, whether cosmopolitanism and nationalism can be reconciled is hard to answer in the abstract because the term “cosmopolitanism” is not sufficiently fixed as yet in the literature. It has been used to refer to a host of distinct ideals about global justice. Indeed, the general ideal that all persons are entitled to equal respect seems so basic that it might be thought “we are all cosmopolitans now”. For cosmopolitanism to be meaningful, therefore, it has to be further defined. And whether cosmopolitanism and nationalism can go together will depend on what it is that we are supposed to be cosmopolitan about. The above discussion suggests that it is possible to be a cosmopolitan about egalitarian justice while accepting the value of nationalism. We will have a more comprehensive examination of cosmopolitanism when we discuss cosmopolitan democracy in Chapter 11.

SUMMARY If nationalism is not inherently illiberal, then there is no reason why a defensible account of global justice cannot make room for liberal forms of nationalism. Moreover, if there are good reasons for valuing nationalism, then a defensible account of global justice must provide sufficient room for nationalist expression and self-determination. In this chapter, we explored the notion of liberal nationalism, and why some of its proponents hold that liberal nationalism must be more than just a form of nationalism around a shared constitution. We also looked at arguments that nationalism is of value because of how it contributes to the objectives of liberal political morality. A feature of nationalism is the ideal of patriotic partiality. How can this partiality be justified? More importantly, does patriotic partiality undermine global egalitarian arguments and commitments? We looked at arguments suggesting that partiality per se need not be problematic for egalitarian justice, especially if egalitarian justice is meant to regulate the background conditions under which persons and associations engage in different pursuits, including personally or associationally partial ones. Finally, we remarked briefly on the relationship between cosmopolitanism and nationalism. While some conceptions of cosmopolitanism stand in conflict with nationalism, cosmopolitanism as an account of the scope of distributive egalitarianism need not be.

STUDY QUESTIONS 1 Why do some liberal nationalists believe that liberal nationalism cannot be merely “civic nationalism”?

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2 What are some of the ways in which nationalism contributes to liberal political objectives, according to liberal nationalists? 3 Is patriotism a virtue or is it a vice to be curbed? 4 Is patriotic partiality in tension with global egalitarianism? 5 What is the most relevant sense of cosmopolitanism for the purpose of global justice? Is this conception of cosmopolitanism compatible with nationalism and patriotism?

NOTE 1 Lawrence of Arabia, directed by David Lean, screenplay by Robert Bolt. As transcribed by Kenneth Mooney: http://www.aellea.com/script/lawrence_of_arabia. txt [accessed 8 Sept. 2016].

REFERENCES LIBERAL NATIONALISM Jurgen Habermas, “Citizenship and National Identity” (1992b). Will Kymlicka, “Misunderstanding Nationalism”, in Politics in the Vernacular (2001b). Alasdair MacIntyre, “Is Patriotism a Virtue?” (1984b).

CONATIONAL PARTIALITY Gillian Brock, “What Do We Owe Conationals and Non-nationals?”, in Global Justice: A Cosmopolitan Account (2009b). Robert Goodin, “What Is So Special About Our Fellow Countrymen?” (1988b). Stephen Nathanson, “Moderate Patriotism” (2017b). David Miller, “The Ethical Significance of Nationality” (1988b).

FURTHER READING Yael Tamir’s Liberal Nationalism (1995) is one of the first books in defense of nationalism in the contemporary debate. See also David Miller’s On Nationality (1995) and Margaret Moore’s The Ethics of Nationalism (2001). For a critique of patriotism and nationalism, see Simon Keller, “Patriotism as Bad Faith” (2005). David Miller’s National Responsibility and Global Justice (2007) argues for national responsibility as a limitation to global egalitarianism. Lea Ypi’s Global Justice and Avant-Garde Political Agency (2012) argues that state-level political associations can be a force for global justice and global egalitarianism. Richard Arneson (2020) is skeptical of national partiality and argues against limits to extreme cosmopolitanism.

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the universality of human rights UNIVERSAL HUMAN RIGHTS Human rights belong to all individuals regardless of their citizenship, nationality, culture and other forms of associative membership. Article 2 of The Universal Declaration of Human Rights reiterates this universality and individuality of human rights as follows: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. Human rights are, therefore, by definition universal in that they are regarded as rights of all individuals qua human beings regardless of their race, religion, political beliefs, nationality, and so on. As a universal ideal, it follows that the protection and securing of the human rights of individuals is not solely the purview of their respective states. States may well be the primary moral agent tasked with securing and protecting the human rights of their own citizens, but human rights are ultimately a matter of international concern. When a state fails to live up to its human rights duties, the international community is entitled, and in fact obliged, to respond appropriately.1 The universality of human rights, therefore, has important practical implications. Crucially, it sets a limit to state sovereignty, that is, the right of a state to independence, and its autonomy to make laws within its territory. It also means that respect for or toleration of cultural diversity has to be balanced against human rights concerns. What accounts for or justifies this universal reach of human rights? What grounds these rights? And how does the universalistic aspiration of human rights influence the content of human rights? For example, should human rights be limited to the DOI: 10.4324/9780367821531-6

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more basic and uncontroversial rights, such as the right to security, and perhaps the right to subsistence, but ought not to include rights that are more specific to liberal political morality, such the right of free expression, association and the right to democratic participation? How are these rights subject to cultural variation, and claims of political self-determination? These are poignant questions as leaders of some countries, such as Mahathir Mohamad (former Prime Minister of Malaysia) and Lee Kuan Yew (former Prime Minister of Singapore), have long rejected the supposed universalistic basis of the current standard of human rights. They claim that human rights, as presently conceived, reflect western cultural and moral values rather than truly universal ones. In particular, they object to the moral individualism they perceive in present human rights doctrines. This cultural parochialism of human rights, they argue, shows that human rights lack universal moral authority. In light of this absence of true universality of human rights, they hold that greater concessions must be given to cultural diversity and state sovereignty. We will discuss the challenge of state sovereignty and cultural diversity for human rights in the next chapter. First, let us examine how human rights can be conceived as universally binding in a way that escapes the charge of cultural parochialism, and see how a non-parochial universalism ought to frame the content of human rights.

THE GROUNDS OF THE UNIVERSALITY OF HUMAN RIGHTS On what philosophical grounds are human rights universal? How can the universal requirements of human rights be justified? Philosophers have organized the various competing arguments in different ways (see Beitz 2009b), and here is one way of organizing the discussion. One approach says that human rights derive from moral features or facts about individuals. Since these moral facts or features are common to all individuals, they provide the foundational justification for universal human rights. We can call this defense of human rights by reference to some theory of universal morality the “moral approach”. A second approach takes human rights to be just the set of rights or related values that the main cultures and traditions in the world affirm or can endorse. Thus, human rights are universal because they constitute the core of the values lying in the intersection of the major value systems of the world. This way of justifying the universal validity of human rights has been called the “common core approach”. A third approach holds that human rights have universal normative status because the international system recognizes their existence and their critical force. The idea of human rights is just an elemental part of the global political culture at this historical moment, and its universality is taken as a given. Thus, when human rights are openly challenged, what is really being opposed is the content of human rights and not the very idea of human rights itself. Accordingly, on this approach, which I will call the global “institutional approach”,2 the philosophical project is that of

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clarifying and justifying the content of universal human rights, and we do this by reference to the purpose for which the idea of human rights is constructed. In what follows we will look at the philosophical pros and cons of these ways of understanding the universality and normativity of human rights.

THE MORAL APPROACH The moral approach to human rights holds that human rights ultimately reflect or derive from the moral entitlements that individuals have qua moral agents.3 One obvious moral approach traces human rights to the natural moral rights of persons. The idea of natural rights has a rich philosophical tradition, going back to Hugo Grotius and John Locke. A moral right is a legitimate entitlement of the claimant that puts others under some corresponding obligation to respect that right. Since natural rights apply to all persons, they are entitlements of everyone universally regardless of national, cultural or political membership. Human rights, although a comparatively more recent idea than the idea of natural rights, are seen as a subset (or specification) of natural moral rights. Why are persons entitled to natural rights? Locke would say that it is because of the fundamental moral equality of persons. This basic moral equality means that each person has a set of natural rights, ensuring that she is free from domination by others. Kantians would argue that it is the status of persons as rational autonomous beings, capable of forming and pursuing valued ends, that makes them creatures worthy of respect and regard as ends in themselves, and thus bearers of moral rights. Although the idea of natural rights is the most direct way of basing human rights on morality, there are other moral approaches that need not appeal to the idea of natural rights. Some have argued that human rights are a means of protecting and ensuring that each individual can attain the requisite human capabilities that are essential for living a flourishing human life. Since these human capabilities are common and basic to all persons, the human rights that are construed to protect these capabilities will have universal scope. Martha Nussbaum (2001, 2011, pp. 62–68) has advanced a capability-based argument for human rights along these lines. Thus, if having adequate nutrition and the ability to associate and form relations with others are features of human flourishing, then there must be a human right to subsistence and a human right to freedom of association and expression to guarantee the capabilities for realizing these goals. Other philosophers, like James Griffin (2008b), have argued that human rights are necessary protections for securing the “normative agency” of persons. Individuals, as normative agents, have an interest in protecting their capacities to form, pursue and revise their ends in life. Human rights serve to protect these basic interests of individuals and to secure the necessary social preconditions for the realization of these interests. Whatever the moral entitlements are that human rights are thought to reflect or protect – natural rights, capabilities, normative agency – what is distinctive in the

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moral approach in general is the view that human rights are founded on some universally held moral entitlements or interests of persons qua moral agents. The obvious advantage of the moral approach is that it easily explains and justifies the universality of human rights. If human rights derive from or reflect our natural rights or moral interests of persons qua human beings that put others under a corresponding obligation to respect and protect, then human rights straightforwardly apply to all individuals universally. Since they are founded on some supposed moral nature of persons, human rights are straightforwardly rights of persons as such, independently of their national and cultural origin. The disadvantage of this approach is that substantive claims about humans’ moral natures are subject to philosophical disagreements. Jeremy Bentham, for instance, famously disparages natural rights as “nonsense upon stilts”. The Kantian notion of autonomy can likewise be disputed, since it turns on a conception of the autonomous self that some might consider metaphysically contentious. And the capability argument, some would retort, presumes that there is an ideal of human flourishing or excellence, and yet this moral perfectionism – that there is an ideal of the good life for human beings which they are capable of attaining given their nature – relies on some conception of human nature or essence that is contestable. Indeed, some might object that the moral theories appealed to for the purpose of grounding universal human rights are themselves hardly universal but reflections of cultural biases. For instance, the ideal of normative agency – that persons are normative agents who have an interest in forming, pursuing and revising their ideas of the good life – relies on a western liberal conception of the individual, one that is not necessarily shared by other political and cultural traditions. The supposed western moral bias is the root of Mahathir Mohamad’s and Lee Kuan Yew’s objection (as noted above), and the moral approach, rather than assuaging their objection, in fact gives it force.

THE COMMON CORE APPROACH The common core approach takes human rights to be the rights or related values that lie in the overlap or intersection of the major value systems in the world. That is, human rights are universal because they reflect the shared moral core of human values. But this means that only values that are truly common to all qualify as universal (Taylor 1999b; cf. Beitz 2009b). One can expect the right not to be tortured, the right to bodily integrity and perhaps the right to basic subsistence to be among the moral rights or values that are universally shared, and so can count as human rights proper. But other moral ideals, like gender equality, freedom of association, the right of political participation and so on, may fall outside the intersection of all sets of values. If so, they don’t qualify as human rights. The idea that human rights are the common denominator of the diversity of global values is appealing. For one thing, it preserves the universality of human rights while avoiding the worry of ethnocentrism. If human rights engage the rights or values that are affirmed by the (at least major) moral systems of the world, then they can

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non-ethnocentrically serve as the universally binding critical standard by which to evaluate state conduct. When a state fails to respect human rights on this approach, it fails by its own standard rather than by some standard that is alien to it. But the price of success on this front is a significantly reduced or minimalized set of human rights. If rights like the right to gender equality or the right to democracy do not belong to the common core of values, then they cannot be regarded as human rights. But does this not potentially render the list of human rights too thin? Is there not the danger under this approach that we are simply reaffirming the status quo? Does this not undermine the basic function of human rights, which is that of providing us with a critical standard for assessing state and international conduct? Some proponents of the common core approach to human rights will point out that since societal values develop and evolve, we must not presume that some rights or values which are not presently in the common core could not eventually gain universal endorsement, and thereby come to gain the status of human rights. For instance, it is possible that, in time, societal values in different traditions can evolve to affirm gender equality (just as that value has come into being, relatively recent in the course of human history, in the western cultural tradition). The ideal of human rights is therefore a progressive one, and more rights can be added to the list of human rights as human moralities progress. The problem with this progressive account, however, is that until that happens, until a right or value falls within the shared consensus, it does not qualify as a universal human right. Thus, until gender equality becomes universally endorsed, it cannot count as a human right. If one finds this problematic, then this counts against the common core approach. In short, one might worry that the common core approach gets us universality with consensus, but at the cost of diluting the content of human rights. The consensus is achieved by treating human rights as the lowest common denominator, and this, some might worry, is too deflationary of human rights.

THE INSTITUTIONAL APPROACH The institutional approach avoids grounding the universality of human rights on a particular moral conception (the moral approach) or some actual or ideally achievable value consensus (common core approach). What gives human rights its moral authority is the fact that the international system – its rules, conventions, norms and practices – along with its participants take them to be authoritative. What is salient is that the idea of universal human rights is already part of the language of international relations in practice and theory (Beitz 2009b). That is, this approach claims that it is already an accepted idea that there are universal human rights that apply to all states and international actors. Indeed, as evidence of this international recognition of human rights, adherents of this approach will note that even tyrants do not deny the universality of human rights when they are called out. Instead, they

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deny that they are violating human rights. As it is often said, this denial is a tribute that vice pays to the virtue of human rights. It suggests that even tyrants accept that the idea of universal human rights is no longer open to negotiation. On a common rendition of this approach, the contemporary idea of human rights is a conscious international response to the atrocities of the Second World War. As the preamble of The Universal Declaration (adopted in 1949) declares, the “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of Mankind”. One lesson of the War is that the sovereignty of states has to be limited by an established international standard – “a common standard of achievement” – so that state sovereignty can no longer operate as a legal and moral shield when states abuse their own citizens. As Charles Beitz (2009b) notes, the idea of human rights is meant to serve a special function in light of this history: to set limits to state sovereignty by proclaiming certain interests of individuals to be matters of international concern, and for whose protection states are to be held accountable. John Rawls’s view of human rights is commonly interpreted as another example of this functional approach (Rawls 1999b). Rawls takes human rights “proper” to be those basic individual rights (to security and subsistence) whose violations by a state disqualifies it as a member in good standing in a lawful international order. The institutional approach thus does not try to philosophically ground human rights on some philosophical ideal of human morality. It accounts for their normative authority by reference to the recognized and agree upon function the idea of human rights is meant to serve. Why we call the individual interests that the idea of human rights is supposed to protect human rights as such is less philosophically crucial. Different political traditions and societies, and for that matter different philosophers, can have their own comprehensive moral, philosophical or even religious reasons why these individual interests universally matter. But this is not an issue so long as there is the affirmation that these interests matter. Rawls calls this an “overlapping consensus” and in fact understand human rights in this way: that they are binding and universal values that all reasonable peoples can come to endorse in spite of their different political cultures and histories. The idea of human rights is thus freestanding in a sense. That is, the idea of human rights is not presented as something that is grounded on any particular moral conception. This does not mean that we must disavow any attempts to connect human rights to some moral beliefs. What this approach will insist on, however, is that human rights are to be seen as ecumenical in the sense that there are different possible moral foundations for these rights. Within some traditions, one might find a natural rights grounding very persuasive. Within another tradition, it might be some ideal of human excellence or perfection that appeals. And within yet others, one might prefer a religious support for human rights. It is also possible that some societies opt to arrive at human rights through a more communitarian morality (e.g., Confucianism). So long as the value and universality of human rights is acknowledged, it is not relevant, as a matter of human rights practice, how different societies and moral systems support human rights within their own moral doctrines

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and traditions. So the institutional approach is not hostile to any particular moral justification for human rights. But it is different from the moral approach in that it does not attempt to ground human rights in some comprehensive moral theory, and does not see the need to do so. The institutional approach is also distinct from the common core approach since it does not reduce human rights proper to just those values that can be agreed upon as a matter of sociological fact. Contra the common core approach, it can say, for instance, that the set of human rights includes more than just those values that belong to the lowest common denominator of the world’s values. Human rights will include all those rights that are necessary for the purpose that we expect human rights to serve. On this approach to human rights, the philosophical task is not so much that of identifying and defending a moral foundation for human rights. In one version of this approach the challenge is to clarify the practical purpose of human rights. It embraces the historical and practical character of the idea of human rights. But that human rights are institutional constructs do not mean they must lack normative force. Accordingly, the content of human rights is to be articulated and refined by reference to this practical function of human rights. For instance, as noted above, Beitz (2009b) writes that human rights limit state sovereignty by identifying the most urgent and important individual interests that states can be held accountable for and that are appropriate subjects of international concern. Thus, whether, say, gender equality is a human right will depend in part on whether it is a suitable subject of international concern. Adherents of the institutional approach do not declare that the philosophical work for human rights is done just because human rights are taken to be an integral feature of the global political culture. The questions of the foundation and normative force of rights (which the moral and common core approaches tackle head on) are just two philosophical issues concerning rights. The institutional approach bypasses these foundational questions, and opts instead to confront the other philosophical questions that it takes to be more relevant. These are the questions of the practical function of the idea of human rights and its proper content in light of this function. For example, if human rights are meant to set limits on state sovereignty on the basis of individual interests that are fitting matters of international concern, does gender equality qualify as a human right? What about democracy? Is that a human right? The key point of the institutional approach, however, is that the normative universality of the idea of human rights is already presumed and is not part of the discussion. Contra the moral approach, there is no need to look for a comprehensive moral foundation to secure its universality. And unlike the common core approach, this universality is not based on a consensus around existing values but on a progressive global political culture, a culture that is shaped by history and collective human experience. A difficulty with the institutional approach is with its freestanding philosophical form. What if someone denies the very idea of human rights, and insists that the

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advent of contemporary human rights discourse is a historical mistake? For example, what can we say to the tyrant who rejects the very concept of human rights altogether? To recall, we noted above that the concept and force of human rights in the present international system is so well entrenched that tyrants in practice don’t openly claim to be flouting human rights, a case of vice paying tribute to virtue. But still such a rejection is possible and we need to know what we can say in response to this type of skeptical challenge. Is claiming that it is unreasonable and out of step with the existing political morality of the global society sufficient and philosophically satisfying? Here, the moral approach that tries to provide a deeper moral justification for why human rights matter will claim the advantage. Yet this comes with a price. As noted, arguments for human rights based on some comprehensive moral views are subject to reasonable philosophical disagreements. So we have to decide which is the more appealing approach – philosophically as well as strategically – in defense of human rights as a practical global political ideal. On the one side, to simply claim to shameless tyrants that they are out of step with the global political culture and that therefore the rest of the civilized world gets to stop them seems philosophically unsatisfying; yet to seek a justification for human rights enforcement in terms of some (controversial) conception of human morality can impede the political and practical force and appeal of human rights. Another challenge for the institutional approach is that there can be disagreements about the practical function of human rights is (e.g. Renzo 2015, p. 571). Is it to limit sovereignty narrowly with respect to military intervention? Or is it to limit sovereignty more broadly, to permit international criticism and condemnation? Indeed, while Beitz takes his functional approach to be inspired by Rawls, he arrives at a different content of human rights from Rawls because he rejects Rawls’s particular and specific understanding of the exact function of human rights. (We will turn to Rawls and human rights below.) Beitz might well be correct in rejecting Rawls’s conception of human rights’ function. But the point is that such disagreements within the institutional approach are possible, and that a shared understanding of the exact role of human right is perhaps more elusive than it might appear. Finally, what are the urgent individual interests that are appropriate subjects of international concern? Can the emergent practice of human rights settle this question without some discussion of what counts as true urgent individual interests? That is, can the practice of human rights on its own determine the content of human rights without recourse to some moral theory of what matters for individuals? These are some of the interesting and rich questions the institutional approach raises.

REFLECTIONS The moral approach to human rights makes the case for the universal moral force of human rights by grounding human rights on moral rights or interests of persons qua human beings. If successful, it can present a strong case for the universality of human rights without necessarily diluting its content. The difficulty with this approach is that claims about human moral natures are philosophically contestable.

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The common core approach avoids philosophical controversy of this sort by treating human rights as the core set of values lying in the intersection of the major value systems of humanity. But the difficulty with this approach, for some commentators, is that this renders the content of human rights too thin. Finally, the institutional approach eschews moral foundational arguments for human rights, and avoids treating human rights as the common core of global values. Rather, human rights are values that the global community has already affirmed and signed up to and are demands that are institutionally sanctioned. The task is then one of clarifying this global moral standard and refining its content. The difficulty with this approach, for its critics, is that it makes human rights too historically contingent, and therefore is in danger of deflating the normative force of human rights. It steps away from confronting the rights-skeptic, but sometimes the skeptic (even in the real world) cannot be avoided.

SHOULD HUMAN RIGHTS INCLUDE LIBERAL RIGHTS? The discussion above suggests that, for some commentators, the universalism of human rights requires that the content of human rights be as non-parochial as possible. That is, human rights should exclude rights that are specific to certain political and cultural traditions and include only those basic rights that are truly common to all of humanity. On this view, some of the rights affirmed in the Universal Declaration are in danger of overreaching. For example, the right to democratic participation and the right to free association, among others, some would argue, are liberal rights. That is, these are rights that are unique to the liberal tradition. Since the liberal tradition is just one among others, human rights proper ought not to include liberal rights. If it is agreed that sovereignty is never absolute but limited by the ideal of human rights, then the practical limits of sovereignty can turn on how different sides to the debate understand the content of human rights. Should human rights proper be limited to the most basic of individual rights, such as the right to security and perhaps the right to subsistence? Or should human rights include some of the rights commonly affirmed in liberal democratic societies, such as the right of democracy, the right to political participation, the right to freedom of expression and association, and the right of gender equality? Interestingly, the Universal Declaration includes these “liberal” rights among its list of human rights. Has the Declaration overreached in its aspiration?

RAWLS: HUMAN RIGHTS AND TOLERATION In The Law of Peoples, John Rawls provides a powerful case for not including liberal rights as human rights in this way. Since human rights are to serve as the evaluative benchmark for a state’s moral standing, including liberal rights among human rights would provide an unreasonable criterion for a state’s moral legitimacy. Such an international standard of state legitimacy would not be adequately respectful of

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nonliberal forms of political life and organization that could very well exist as equal partners with other societies in a lawful international order. In other words, for Rawls, given the critical function of human rights, adding liberal rights to its content will violate the limits of international toleration. Rawls believes that his conception of international toleration follows from his account of political liberalism. For Rawls, the liberal state ought to tolerate comprehensive doctrines (such as a person’s conception of the good life) even if they aren’t liberal so long as they are in conformity with the public political principles of liberalism. Since comprehensive doctrines are subject to reasonable disagreement, the liberal state steps out of bounds if it does not tolerate nonliberal comprehensive doctrines. So long as adherents of nonliberal doctrines can affirm the public political requirements of liberal justice, there is no cause to politically criticize, much less challenge, these nonliberal doctrines. Analogously then, if a state is able to affirm the principles of the society of peoples, there is no grounds for objecting to its internal political organization. Thus, for Rawls, “human rights proper”, as he calls them, are limited to the most basic of rights, such as the rights of persons, rights of religious freedom, rights to formal legal equality and a right to basic subsistence. States that violate these basic rights will be classed as tyrannical states, and will be subject to appropriate international criticisms, sanctions and even intervention in extreme cases. But states that respect basic human rights and are peaceful and law-abiding members of the society of peoples in other ways are states in good moral standing, even if they aren’t liberal in their domestic constitution. That is, states qualify as decent even if they don’t endorse liberal rights, like the right of political participation, equal religious freedom, right of individual dissent and so on. These nonliberal but rights-respecting and lawabiding states, what he calls “decent peoples”, are to be recognized as members in good standing in the society of peoples. As such, they should not be pressured by liberal states or the international order to become liberal internally. Since decent peoples don’t stand in violation of human rights (by definition since human rights do not cover liberal rights), these societies are entitled to their sovereignty and non-interference. Rawls’s position on international toleration has launched a substantial body of literature. Some critics argue that, even if Rawls is right that expecting all individuals to adopt liberal comprehensive ideals in the whole of life is intolerant of nonliberal conceptions of the good, it does not follow that international toleration is violated if principles of liberal political justice were to be required of all states. The space for reasonableness in the domestic case concerns nonpolitical comprehensive matters, such as one’s conception of the good life; in the international case, it is disanalogously extended to include political ideals and conceptions on how to organize the public arena. Rawls’s response is that since he is developing a two-tiered account of justice – that is, a standard of justice for liberal domestic society, and a different standard of justice for international society – the scope of reasonableness may be appropriately adjusted when moving from the domestic to the global contexts. Thus, what would count as reasonable in the domestic case, namely requiring that all persons accept

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the political liberal conception of justice for the public domain of the liberal state, would not be so considered in the global domain. In the liberal domestic case, certain liberal values are already explicitly or implicitly affirmed. That is, there is an existing liberal political culture that underpins the reasonableness of this requirement. However, in the global context, there is no shared global liberal political culture to support this expectation. There is the culture of human rights in the global domain, but one that does not include the more parochial liberal rights. So while it is reasonable to require that all societies, in order to be in good standing, affirm human rights, it is unreasonable to require them to also endorse liberal rights. This exclusion of liberal rights will depend on how we envisage the global political culture. Is this culture a liberal one at its core? And if not, would it be reasonable for liberals to want it to become more liberal? That is, if the formation of a global liberal political culture is not itself an unreasonable quest, then requiring all states to become characteristically liberal if they are to be in good standing in the society of peoples need not be a violation of international toleration. One might be tempted to think that one of Rawls’s reasons for not including liberal rights as part of human rights is that human rights violations are triggers for military intervention. If human rights violations do present a just cause for military intervention, then it does seem sensible not to have too exacting a standard of human rights since there are very good reasons for limiting the moral occasion for going to war. But this conflation of non-tolerance with military intervention overextends Rawls’s functional account of human rights. It is correct that respecting and protecting human rights is one necessary criterion for a state to be in good international moral standing. He is clear that any state that does not respect human rights proper will be deemed unreasonable and will not meet the limits for international toleration. But it is not the case that states which violate human rights are therefore subject to military intervention. Even though tyrannical societies that violate human rights are not to be tolerated, it does not follow that they are legitimate targets of intervention. Whether it can be permissible to intervene in a rights-violating tyrannical society is a further question, and Rawls’s own response is that “in extreme cases” intervention could be warranted. Thus, to conflate non-tolerance with intervention confuses an evaluative standard with a method of enforcing that standard. Thus, if human rights violations are not sufficient reasons for military intervention (an enforcement issue) but serve only as standards of legitimacy (an evaluative issue), then it is less troublesome if human rights include liberal rights. Illiberal states will not be tolerated, but there is no danger that this risks setting the world on some slippery slope towards habitual military intervention. Indeed, if a just war has to satisfy, among other things, some proportionality criterion, it is hard to imagine how violations of liberal rights themselves could present a just cause for a military intervention. (We will return to this subject in the next chapter.) Disengaging non-tolerance from military intervention does not mean all talk and no action. There are many ways for the international society to respond to human rights failures, from mild diplomatic pressures for less severe violations to providing incentives and, in more important cases, disincentives and other forms of sanctions short of military engagement.

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But there might be another reason why imposing liberal rights (as human rights) on all states as a criterion for moral legitimacy might be seen as an intolerant response. It does not properly respect the tradition, customs and values of historically distinct cultural or national communities. This is one of the questions we will explore in the next chapter.

SUMMARY In this chapter, we discussed the basis for the universal scope of human rights. One approach takes human rights to be part of human morality and so, in as far as morality is universal, so are human rights. The difficulty with this approach is that theories of morality are subject to philosophical disputes. Another approach takes human rights to be the lowest common denominator values that are common to all (the main) moral systems in the world. The difficulty with this approach is that there is the possibility that the content of human rights will be rendered rather minimal. Finally, we looked at the institutional approach that takes the universality of human rights to be an accepted feature of international relations. On this approach what is open to debate is not the universality of human rights per se but the fleshing out of its content in light of the role which the idea of human rights is meant to play in the world. This seems to be a promising approach. One question it invites, however, is whether this way of conceptualizing human rights renders it too contingent on the values already affirmed in the global political culture. Finally, we looked at whether human rights should include some of the common liberal rights, such as the right of democratic participation, right to freedom of association and expression, and the like. Some liberals believe that including liberal rights as human rights risks rendering human rights too parochial and ethnocentric. Others think that, to stay consistent with their liberal commitments, liberals ought to expand human rights to include certain liberal rights. The universality of these rights need not imply a lack of toleration for nonliberal societies, since the scope of toleration is to be determined within the bounds of rightness.

STUDY QUESTIONS 1 Should the idea of human rights be founded on a moral theory? 2 Does a consensus approach to human rights achieve universality at the cost of the moral content of human rights? 3 Is there an emerging practice of human rights? Can we agree on what the function of this practice is? 4 Is the practical approach to human rights too morally disengaged to have the critical moral authority and force we would want in the idea of human rights? 5 Should human rights include liberal rights, or would this exceed the limits of international toleration?

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NOTES 1 Although the international community has the right (or even the obligation) to respond to human rights violations, it does not mean that it has the right (or duty) to engage in military intervention. Military intervention is a particular form of response to human rights violations and raises additional moral considerations. I will turn to this topic in Chapter 8. 2 In the first edition of this book, I referred to this approach as “the historicist approach”. Nothing turns on labels but on hindsight, “historicist” is perhaps too narrow as a title. 3 By calling this the “moral” approach, the implication is not that the other approaches are amoral or lacking in normative standing. Rather, it is to signify that, on this approach, human rights are the entitlements, straightaway, of moral persons. I thank a reader for urging clarification of this label.

REFERENCES Charles Beitz, The Idea of Human Rights (2009b). Gillian Brock, “Rawls’s Law of Peoples”, in Global Justice (2009b). James Griffin, On Human Rights (2008b). Martha Nussbaum, Creating Capabilities (2011b). John Rawls, The Law of Peoples, Part II (1999b). Charles Taylor, “Conditions of an Unforced Consensus on Human Rights” (1999b).

FURTHER READING For some advanced discussions on the foundation of human rights, see the essays in The Philosophical Foundation of Human Rights, edited by Rowan Cruft et al. (2015). Rex Martin and David Reidy’s edited collection, Rawls’s Law of Peoples (Martin and Reidy 2005), has chapters on Rawls and human rights and international toleration.

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human rights: the challenge of state sovereignty, culture and gender In the previous chapter, we examined possible arguments for the universality of human rights. We will continue with this investigation, this time by examining two specific obstacles to human rights universalism. One is the principle of state sovereignty. The principle of sovereignty holds that states are independent and autonomous with respect to other states and have the right to determine their own laws and political institutions within their territorial jurisdiction. We noted, however, that human rights can serve to limit state sovereignty. Yet, the principle of state sovereignty is considered to be one of the fundamental principles of international relations, and leaders of some countries are quick to invoke the principle of state sovereignty to fend off outside criticisms of their human rights practices. How should we assess this tension between human rights and sovereignty? State sovereignty undoubtedly has value; but the idea that sovereignty trumps any international human rights concern is dubious. What is the proper relationship between sovereignty and human rights? What is the value of state sovereignty from a human rights perspective? The other challenge is that of cultural diversity. Human rights include the right of individuals to a shared or common way of life. But how do we reconcile the respect for individual human rights with the right of individuals to a cultural community and tradition when these come into conflict? For example, Asian leaders like Lee Kuan Yew, have made the concept of “Asian Values” a household name. They believe that there are distinctive culturally derived Asian moral values that have withstood the test of time and that are at odds with human rights as presently understood. DOI: 10.4324/9780367821531-7

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Thus, imposing human rights on all countries without regard for their different cultural traditions amounts to a form of western moral imperialism. Indeed, the cultural defense is sometimes invoked as a deeper support for the right to sovereignty (although it is not the only way of defending sovereignty). We will look at these two related challenges to human rights in this chapter. We will end this chapter by looking at the specific problem that gender justice poses for human rights. Here the question is: should there be a special case of human rights for women? Or are universal human rights – properly articulated and implemented – sufficient for protecting the human rights of women? And how do we respond to the commonly posed worry that respect for cultural diversity can be in tension with protecting women’s human rights?

HUMAN RIGHTS VERSUS SOVEREIGNTY Human rights and the principle of state sovereignty are two of the key normative pillars of international relations. Yet they are in tension when the protection of human rights requires some kind of international interference with a state. This conflict between sovereignty and rights is one of the core problems of global justice: to what extent should sovereignty be respected when human rights are at stake? It is therefore important to clarify the relationship between human rights and sovereignty since it affects our understanding of the universal reach of human rights. The ideal of sovereignty is a complex one and can be given different meanings depending on the discussion. For instance, one might understand sovereignty narrowly as immunity from military intervention in the discussions of just war. The concept can, however, also be understood more broadly to mean a right of selfdetermination, that is the right of a state to conduct its internal affairs without outside interference, including here not just military action but diplomatic, economic, etc. This will be our understanding of the right to sovereignty: it is a right to construct and pursue a shared way of life as a political society without interference from outside. Why is sovereignty a value? In particular how is it a value? Why should we think that states have a right to sovereignty, if we also believe in human rights? One position will be that sovereignty ought to be respected because it provides a means for protecting and securing human rights. This is an instrumental defense of sovereignty. On this view, human rights exist independently of the state. The role of the state is to protect and secure these independently existing human rights. Another position accords sovereignty intrinsic value. On this second view, sovereignty is to be respected because the right to sovereignty is itself a human right, and/ or it is a right that brings other human rights into existence. Accordingly, sovereignty is not merely a means for securing human rights (as in the instrumental account), but is what makes human rights possible. We will consider these defenses of state sovereignty in turn.

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SOVEREIGNTY: AN INSTRUMENTAL RIGHT On the instrumental defense of sovereignty, state sovereignty matters because respecting a state’s right to determine its own internal affairs without outside interference is a means for achieving human rights. That is, human rights are more liable to be promoted and realized when a state, the primary arena within which human rights are protected and enforced, is able to freely determine its own domestic life, including working out the institutional mechanism by which human rights are to be exercised. The argument might even posit that states know the interests of their own citizens best, and thus are in the best position to serve their human rights. So the right to sovereignty is an instrumental right in that respecting this right of states is the best means of protecting the human rights of individuals. But this instrumental defense of sovereignty by implication prioritizes human rights over sovereignty. If sovereignty is instrumentally valued with regard to human rights, then in cases where a state is violating, or even when it is clearly unable to protect, the human rights of its own citizens, it forfeits its claim to sovereignty. On this instrumentalist view of sovereignty, respect for a state’s sovereignty is conditional on the state’s protection of and respect for the human rights of its own citizens. One might push back against this quick surrender of sovereignty by insisting that, just as an individual knows best what her own interests are, so does the sovereign state. And just as when outsiders interfere paternalistically against an individual, they tend to get it wrong, so when outsiders interfere with a state on human rights issues, they tend to get it wrong. Outsiders lack the cultural and historical knowledge and hence may believe a rights violation is involved when the issue in question might just be an accepted practice. It is, however, important not to exaggerate the epistemic point. For one thing, when there is a belief that human rights are being violated, it is often because those whose rights are being violated are crying out for help. These victims are as much insiders as their abusers and outsiders are getting involved simply on their behalf. At the very least, the idea that outsiders cannot know whether conditions within a foreign state are suited for human rights or not cannot be taken at face value. Thus, the instrumental defense of sovereignty is one that human rights defenders can readily accept. They will say in fact then that we should respect a state’s sovereignty when it is discharging its human rights duties to its own citizenry. But when a state fails in this regard, the reason for respecting its sovereignty disappears.

SOVEREIGNTY: A NON-INSTRUMENTAL RIGHT The intrinsic (in the sense of non-instrumental) argument for sovereignty poses a more difficult challenge for human rights. One form of this argument says that the right to sovereignty is itself a human right and so the tension between human rights and sovereignty is really a tension within the ideal of human rights itself and so giving priority to rights does not mean relegating sovereignty to a secondary status.

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Another says that even if sovereignty is not itself a human right, it is constitutive of human rights in that it establishes and secures the setting that gives rise to human rights. Among the human rights that persons have, the first argument goes, is the right to collectively determine the course of their joint political life. As Michael Walzer puts it, state sovereignty “derives its moral and political force from the rights of contemporary men and women to live as members of a historic community and to express their inherited cultures through political forms worked out among themselves” (Walzer 1980b, p. 211).1 Thus, the conflict between state sovereignty and human rights is not really a conflict between two different ideals, but a conflict within the ideal of human rights itself. The instrumentalist view, which is favored by human rights proponents, oversimplifies the relationship between rights and sovereignty and resolves the conflict in a mistakenly simplistic way. On the contrary, respect for human rights can sometimes prioritize the claim of a state to sovereignty. On this view, only under the more severe instances of human rights violation, when it becomes cynical to say that there is some community acting in self-determination, can the right to sovereignty be forfeited. The other argument for the intrinsic moral standing of states is that many of the central human rights that persons typically claim aren’t rights that they have in some stateless situation or a state of nature. Rather, the important human rights – the basic rights to personal security, personal property, protection of the law, etc. – are rights that are identified, specified and enforced within a state structure. That is, these human rights make sense only in the context of a state. Without a state, these rights have no home. Again, Walzer’s remarks on this point are representative: “The distinction of state rights and individual rights is simplistic and wrong-headed … without the first of these, the second is meaningless: as individuals need a home, so rights need a location” (Walzer 1980b, p. 228). The political society is where important human rights are specified and protected. Disregarding the autonomy of a political society therefore threatens the social setting that makes human rights possible. Unlike the instrumentalist view of sovereignty, this constitutive view of sovereignty takes it that the role of the state is not just that of an enforcer and protector of some pre-existing human rights which persons have in nature. Rather, the state creates and makes possible the existence of these rights. Thus the instrumentalist view, that the protection of human rights can warrant the forfeiture of sovereignty, is at risk of incoherence as it seeks to undermine the very conditions of human rights. These two arguments for the intrinsic moral standing of states can reinforce each other. Since states are necessary for the realization and protection of certain important human rights (the second argument), and since individuals have the right to a “rightful condition” of this sort, individuals have a human right to form a state of their own (the first argument). A state, therefore, does not forfeit its moral legitimacy in the eyes of the international community merely because it has restricted certain human rights – like the right to gender equality, the right to free speech and association, the right to

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political dissent, and so on. On the intrinsic conception of sovereignty, so long as a state continues to secure the public and political arena within which the rights of individuals can be worked out, it maintains its right of self-determination and sovereignty. Indeed, this international respect is required even if some members of the state find that it has lost its moral legitimacy. A state that is not morally legitimate in the eyes of (some of) its citizens can nonetheless retain international legitimacy. The main difference between what we can call the cosmopolitan and communitarian conceptions of sovereignty and human rights can be summed up as follows. The cosmopolitan view denies that there is a human right to sovereignty as such, and holds that the state has only the instrumental role of protecting and enforcing human rights. The communitarian view holds that sovereignty is itself a human right, and that the state has a constitutive function, and not just an instrumental one, with respect to human rights. Thus the real world problem of the limit of sovereignty and human rights turns on some deeper philosophical questions. A fuller resolution of this matter will require further analysis of the purpose of the state in relation to the rights of individuals. It will also require philosophical analysis of the relationship between the rights of individuals and the rights of a collective. For example, under what conditions can a collective correctly express the rights of its individual members? Even if we grant the constitutive view of the state, it matters how we define the function of the state in relation to rights: is the state’s purpose to provide an institutional order in which certain human rights are exercisable and protected, or is the state’s role only that of securing a stable forum in which these matters can be disputed, debated and worked out in whatever way? If we believe that the constitutive function of states is to realize human rights and not merely that of providing a stable arena for their contestation, then any state that fails to achieve this end surrenders its very purpose and loses its moral standing. That is, even if the state is that which provides the setting for the existence of human rights, it does not follow that any state arrangement would do. The rightful conditions, the conditions of rights that the state makes possible, presumably require that the state take certain institutional forms.

CULTURE AND HUMAN RIGHTS It is sometimes claimed that the demands of human rights go against certain cultural traditions and values. Thus, human rights cannot really be universal since not all cultural practices can endorse them. Or, at the very least, what can be considered universal human rights will be rather minimal if human rights are to enjoy global endorsement, given the fact of cultural diversity. For shorthand, let’s call this the “culturalist” challenge to human rights. To give this challenge some content, I will focus on the Asian Values objection to human rights.

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The Asian Values objection is more properly an East Asian Values objection. The objection is that the ideal of human rights commonly proposed as universal is in fact at odds with the Confucian tradition and values of certain East Asian countries, such as China and Singapore. Confucian values, the adherents of this argument say, emphasize community over the individual, responsibility over rights, and these principles are in tension with the individualist and rights-based focus of human rights doctrines. The Asian Values challenge is thus not a straightforward case of ethical relativism – that is, the claim that there can be no universal moral standards on account of cultural diversity. It does not deny that there are certain universal standards, including standards which have to do with the good of a community and responsibility. Indeed, proponents of the Asian Values position imply that there is a universal human right to a tradition or a cultural way of life. Moreover, few proponents of Asian Values will deny that there are human rights to basic security and subsistence. What they really are opposing is the perceived liberal morality in human rights universalism, the claim that human rights must include democratic participation, freedom of speech and expression, freedom of association and freedom of political dissent. Consider the charge of excessive normative individualism that proponents of Asian Values level against the idea of human rights. They put the case that groups can be holders of rights as well, and that the right of the group to preserve and maintain its shared values and tradition can trump the rights of individuals. This group right goes beyond the right of individuals to a secure and stable social environment in which they can live and interact with each other. It includes the right of the group to a particular cultural and social context and way of life. These cultural values include respect for authority, filial piety (respect for one’s parents and elders), respecting the proper modes of expressing dissent, willingness to put the interest of the group before one’s own, and so on. These cultural practices and traditions are valued not just because they promote stability and social harmony but they are valued also as forms of cultural expressions. Related to the problem of individualism is the perceived exclusive rights focus of the human rights discourse. Naturally, the ideal of human rights has to be concerned with rights. The Asian Values objection says, however, that this preoccupation with rights is one-sided. With individual rights must come individual responsibility, and yet human rights discourse does not say much about individual responsibility. Again, this has been diagnosed as liberalism’s undue influence on human rights, since liberalism is traditionally concerned with granting individuals rights as protections against the excesses of the state. This stands in contrast to the Confucian moral code, so claim proponents of the Asian Values argument, which stresses the individual’s responsibility to society and the social order over the rights of individuals against society. If there is to be a universal ideal of human rights, there has also to be a universal declaration of responsibility. The Asian Values argument is perhaps the most well-known of the culturalist challenges because of the prominence of some of its proponents, such as Lee Kuan Yew

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of Singapore and the various premiers of China since the 1980s.2 What can the human rights defender say in reply to the East Asian challenge, and the culturalist objection in general? First, with regard to the fundamental claim that there is a basic tension between Asian Values or Islamic Values on the one hand and human rights on the other, it can be queried whose interpretation of Asian Values or whose interpretation of Islam are we presuming. A rich cultural tradition is not monolithic, and certainly not static but is rather multidimensional and dynamic. There isn’t just one interpretation of Asian Values. What Asian Values are is contestable by members of Asian societies, just as western values are subject to interpretation and argument. Thus, against the anti-liberal interpretation of Confucian morality, there is a more liberal reading of Confucianism. It is precisely because a cultural tradition is subject to debate and interpretation, and not a matter carved in stone for all to see, that the right of free expression and political participation, including democracy, is taken to be a central human right if we are to take cultural claims seriously. If culture is of value to groups of individuals, then each individual must have the right to deliberate with fellow members the content and traditions and direction of their culture. If Asian Values are important and to be respected, then the rights of individuals to determine the content of these values must be respected. The human rights defender therefore need not deny that groups can have a right to a cultural way of life, a right that in a sense may trump the preferences of some particular individuals. But for a right to be properly a group right, they will say, certain internal moral conditions must hold. Only when all are free to voice their opinions and engage in free exchange with each other can we be reasonably confident that the cultural viewpoint expressed can be described as a viewpoint of the whole. A person whose preferences have been outvoted can be expected to stand by the group’s decision so long as the voting process is one that is fair. Moreover, prioritizing the group’s decision over her preference is not morally objectionable if her basic interests remain protected. So liberals can take seriously certain cultural claims so long as individual rights set the moral constraints on exercises of group preference. With respect to individual responsibility, the East Asian objection seems to be on the correct path if what they are saying is that rights must be accompanied by and supplemented by individual responsibility. After all, to take rights seriously will require taking the responsibilities that these rights impose on each of us seriously. But if the East Asian position is claiming that rights must be supplanted by responsibility as the more basic ideal, then this seems to be an overreach. Rather than seeing responsibilities and rights as competing alternatives, they can be seen as two sides of the same coin. For this reason, human rights advocates should concede that the other side has a point here, that rights talk should be supplemented with some account of individual responsibility.3 Ignoring the significance of responsibility, as the flip side of rights, will only fuel skepticism about the supposed universality of rights.

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It is worth noting that the culturalist challenge to human rights replicates a debate within liberalism itself concerning the relationship between multiculturalism and liberalism. There can be some lessons to be drawn from this internal debate amongst liberals. For one thing, it affirms the value of culture and its significance for liberalism, thus narrowing the apparent gap between the culturalist and the human rights advocate. Liberal multiculturalists have argued that cultural identity is an important individual good in that it provides the context within which persons make choices that are meaningful and valuable to them. That is, we don’t choose our pursuits in a cultural vacuum but from a range of options that are culturally valued and defined. Thus, in the case of a multicultural society where the cultural membership of individuals in minority cultures is less secure, the liberal state can provide some means of support through the provision of special cultural rights. These are group rights in the sense that they are rights that are group-differentiated and that serve to protect a group’s way of life rather than any particular individual preference. But while liberal multiculturalists go some way towards recognizing the value of and protecting culture, many are also insistent that a culture’s worth turns on whether it in fact respects the basic liberal rights of individuals, including its own members and internal minorities (Kymlicka 1995). If liberal multiculturalism is a plausible position, then the East Asian Values Challenge can be absorbed rather than acceded to. The human rights defender can affirm the value of culture and the right of a group of persons to support and maintain a shared way of life and common values; but this cultural group right is to be exercised within certain parameters as defined by individual rights.

GENDER AND HUMAN RIGHTS WOMEN’S RIGHTS Are women’s rights human rights? As stated, this question seems odd, since if women are humans, then surely their human rights are human rights. But the question is not whether women are entitled to human rights, but whether there ought to be special human rights for women. One response to this question notes that all women and men are human beings with common needs and interest and identical moral status. As such, there are only universal human rights that apply equally to men and women. There is no need for any special human rights for women. The problem, on this view, is not that women need a special class of human rights, but that historically and at present their human rights are not being properly or equally protected or respected. These problems of enforcement and protection are not trivial problems to be dismissed. In fact, they will require significant domestic reforms in many cases and more concerted international concern. But, ultimately, the issue is that of equal and gender-neutral protection and enforcement of human rights, not the lack of special human rights for women.

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Traditionally, the problem of women’s rights does seem to be that of unequal protection and respect. For example, in many countries today (and in most until recently), women do not have the same citizenship rights as men. They don’t have the right to vote, to equal education, of mobility and occupation, and the like. Women (and girls) are also traditionally subject to outright physical violations or forced to participate in rituals and social practices that violate their basic human rights, such as female genital mutilation. Women are also subject to domestic violence and abuse that many states seem unable to protect them from. These are cases of women not enjoying human rights that men take for granted, and although as mentioned these are serious issues, the way to secure their resolution, on this account, is to ensure that women are able to enjoy the same human rights as men. So, although there are clearly violations of the human rights of women, the position sketched out above sees the solution as lying in better enforcement and equal protection of human rights as such, not the creation of a new and special category of women’s rights. But other commentators have argued that women have special needs and interests that require a special set of human rights for women. Women have child-bearing and nurturing responsibilities and needs; they have the larger share of the caring duties for family members in traditional households; and they are more vulnerable to physical and sexual violence. No doubt some of these discrepancies of needs and interest have social and institutional sources, but they are present all the same. Given these real differences in needs and vulnerabilities, there has to be a class of human rights specifically for women to supplement the existing set of human rights. The problem, according to this view, is not that of discrimination with respect to how we enforce human rights for men and women. The problem is a deeper one, having to do with the inherent male biases in human rights, as currently conceived. Susan Moller Okin, for example, points out that there are specifically “gender-related forms” of rights violations against women that are not normally considered human rights abuses. Frequently these abuses are perpetrated by more powerful family members against less powerful ones. For example, slavery is generally recognized as a fundamental violation of human rights. But parents’ giving their daughter in marriage in exchange for money or even selling her to a pimp has not typically been seen as an instance of slavery. (Okin 1998b, p. 35) This feminist criticism of human rights parallels one line of feminist critique of domestic justice. It basically levels the charge that the standard ideal of human rights is presented as if it were gender-neutral and universally applicable to men and women, when in fact it has been constructed from the male perspective and with the interests of men in mind. The rights and abuses that are of concern in standard human rights doctrines are male-centered, and abuses that are specifically and uniquely targeted at women are left off the agenda. So, just as some domestic

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feminist theorists have argued that there must be special protection and rights for women in domestic society beyond the right of non-discrimination and equal protection, so too some global feminists argue that there have to be special rights for women beyond non-discrimination and equal application of human rights as they are currently understood. Readers will agree that the human rights of women are especially vulnerable and frequently abused. The interesting question is whether this calls for a more equitable enforcement of the ideal of human rights and better non-discrimination against women, or whether it requires some reconceptualization of the idea of human rights and the creation of a special class of human rights for women. Is the current standard of human rights irreparably male-centric or are its commitments open to more gender-neutral interpretations, even if in practice this has not been done? This question connects with some live issues in feminist political philosophy.

GENDER EQUALITY AS A HUMAN RIGHT? Is gender equality a human right? Should the liberal ideal that men and women are free and equal citizens be regarded as a universal ideal, such that violations of this ideal will count as a violation of human rights? On the common core approach to human rights that we discussed in the previous chapter, if gender equality is not a universally shared value among societies in the world, then, pro tem, it cannot be a human right. Charles Taylor (1999) has proposed an argument along these lines in his defense of the common core or overlapping consensus approach to human rights. Taylor is not claiming that gender equality could never be a human right. He is only claiming that while it is not among the shared values of the world, it cannot yet be conceived as a human right. He urges western liberals to appreciate that gender equality was a hard-fought, recent victory in western societies, with much work still to be done. Sensitivity to history and tradition should prompt us to recognize the challenging path to moral progress; that it has its own internal cultural impetus but is also realizable. But until there is convergence on this matter, the insistence that gender is a human right is not only disrespectful of diversity but also counterproductive by reinforcing conservative opposition to progress. John Rawls has made a similar kind of argument out of international tolerance. He allows for a decent theocracy; one in which, of course, by virtue of its decency, the basic rights of women are protected and their interests properly represented. But there is no requirement for gender equality in a decent theocracy since this equality is a liberal ideal and it would be a case of intolerance to impose that ideal as a human right on all societies. Those who believe that gender equality is not merely a right in liberal societies but a human right will insist that it is not intolerant to promote gender equality as a human right. They will argue (as we saw in the previous chapter) that some quintessentially liberal rights can be properly conceived as human rights, gender equality being one of these. As for the concern that this entails international intolerance of cultural differences, their response is that intolerance is not a freestanding notion,

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but rather a standard that answers to some background conception of political justice. That is, some prior standard of rightness and wrongness defines for us the limits of toleration, not the other way around. Moreover, as also noted earlier, to say that gender equality is a human right does not mean that we may, let alone ought to, go around imposing that ideal. The claim that gender equality is a human right is a claim about standards and our commitments. How we are to go about enforcing our commitments is a different story, and there are right ways and wrong ways of enforcing moral standards and commitments.

CULTURE AND GENDER How much normative space is left for cultural diversity if we are committed to gender equality? Susan Moller Okin believes not much. She argues that cultural rights, as in the case of minority rights for immigrant groups in societies, are detrimental to gender equality and women’s rights more basically (Okin 1998, 1999). Cultural rights protect traditional and informal cultural practices in the private sphere, such as in the home. These informal cultural practices for Okin are the main source of violations of the rights of women. Since the traditional cultures that liberal multiculturalists seek to protect tend to be patriarchal (as most traditional communities are, she believes), supporting the survival of minority cultural communities through state multiculturalism is bad for women. Thus, a true feminist cannot also be a multiculturalist, she concludes. Okin rightly draws our attention to an interesting and significant conflict between the rights of a cultural group and the rights of individual women. But, as some of her critics point out, her claim that minority cultures are inherently patriarchal overgeneralizes. There are cultural practices and cultural values, and the fact that some cultures have sexist practices does not mean that sexism is part of the culture’s values. The aim of the feminist is not to eliminate distinctive cultural ways of life altogether, but to identify and reform specific sexist and harmful practices. Moreover, the liberal multiculturalist Will Kymlicka, whose defense of liberal multiculturalism is what sparks Okin’s condemnation, stresses that liberal multiculturalism does not, and ought not to, tolerate cultural practices that are restrictive of individual freedom and equality (Kymlicka 1995). There is thus no compunction under liberal multiculturalism for the state to allow, much less promote, cultural practices in the private sphere that are detrimental for gender equality. The liberal state, for example, does not permit households to prevent their girls from receiving an education. A universal requirement that all children attend school that is not subject to cultural disagreement is one way in which such a cultural practice is explicitly disallowed. These questions of whether women constitute a special class entitled to special rights, whether gender equality is a universal value (or merely a liberal ideal), and the relationship between respect for cultural diversity versus protection of women’s rights are some of the staple issues in feminist political and moral philosophy. A fuller resolution of the problems we touched on above will require engaging with some of

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the core debates in feminism. But examining the special case of women and human rights will, in turn, give us an additional angle for exploring the core questions.

SUMMARY This chapter examined the challenge of global diversity for human rights. One major expression of global diversity is the principle of state sovereignty. How can state sovereignty be reconciled with the universal requirements of human rights? If state sovereignty is seen as a means for furthering and protecting human rights, then we have a way of reconciling sovereignty and rights that morally prioritizes human rights over state sovereignty. On the other hand, one might argue that sovereignty is more intrinsic to human rights than this. For instance, state sovereignty is itself a human right, or it is what provides the preconditions for the fruition and realization of human rights. Still, even on this conception of sovereignty, we can still ask if there are any moral constraints that states must satisfy if the collective self-determination of a people (that sovereignty is meant to protect) is to have the status of a human right. And if states provide the necessary preconditions of human rights, this suggests too that there are certain moral conditions that states are to satisfy in order for them to properly give birth to human rights. The other challenge of diversity we looked at is the challenge from Asian Values. This is the claim that certain cultural traditions are at odds with human rights, and so human rights (or at least a range of human rights) do not apply to them. These culturalist arguments, however, presume that cultural traditions are monolithic and set in stone rather than pluralistic and continuously reinterpreted (as living traditions are). If cultural traditions are themselves subjects of interpretation and debate, then any claim of a cultural consensus has validity only if the conditions for individual free expression and free exchange are antecedently present. Finally, we looked at the problem of gender and human rights. Is there a need for a special class of human rights for women? Or is the problem that of equal enforcement of existing human rights? Is gender equality a human right, or should there be admissible cultural variation on this matter? And is there a tension between cultural rights and women’s rights, or is cultural diversity compatible with women’s rights? These are difficult questions, and our aim, as always, is to identify the key competing views and the further questions they raise, rather than to provide decisive answers to them.

STUDY QUESTIONS 1 Should humsan rights have moral priority over state sovereignty? 2 What is the value of state sovereignty? 3 In what way does the state produce the necessary preconditions for certain human rights? What are some of these human rights? 4 What is the moral significance of cultural diversity? Should moral requirements be limited by cultural traditions and values?

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5 Are there cultural practices and tradition that ought not be limited by the requirements of human rights? 6 Do we need a special class of human rights for women? 7 Can cultural reasons be a justification for gender inequality? 8 Some countries have banned the wearing of religious scarves and headdresses (by women) in public spaces, such as schools. How would one argue that these restrictions are consistent with liberalism? Do you agree that they are?

NOTES 1 Although Walzer’s classic paper is motivated by the problem of military intervention, the arguments he presents in defense of a general principle of non-intervention claim more for states than just the right to non-intervention. His arguments imply in addition that outsiders act wrongly when they judge societies against standards of individual rights that are alien to their tradition. 2 The Islamic challenge is another culturalist challenge to human rights, one that raises more explicit religious objections to the perceived liberal agenda in human rights as well as introducing the problem of gender equality. 3 Some countries have thus proposed a “Universal Declaration of Human Responsibilities” to supplement the Universal Declaration of Human Rights. Available at http://interactioncouncil.org/universal-declaration-human-responsibilities [accessed 9 Sept. 2016].

REFERENCES SOVEREIGNTY AND HUMAN RIGHTS David Luban, “The Romance of the Nation-State” (1980). Michael Walzer, “The Moral Standing of States” (1980b).

CULTURE AND HUMAN RIGHTS Daniel A. Bell, “An Asian Voice on Human Rights?”, in East Meets West (2000b). Amartya Sen, “Culture and Human Rights” (1999b).

GENDER RIGHTS Allison Jagger, “‘Saving Amina’: Global Justice for Women and Intercultural Dialogue” (2005b). Martha Nussbaum, “Human Capabilities, Female Human Beings” (1995b). Susan Moller Okin, “Feminism, Women’s Human Rights, and Cultural Differences” (1998b).

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FURTHER READING For one critique of sovereignty, see Charles Beitz, “Sovereignty and Morality in International Relations” (1991). Jack Donnelly, “Sovereignty and International Human Rights” (2014), surveys the modern evolution of state sovereignty in light of the development of human rights. For discussion on culture and justice, see Will Kymlicka, Multicultural Citizenship (1995). See the chapter “Toleration and its Limits” for a position on the limits of cultural pluralism. See Joanne Bauer and Daniel A. Bell (eds), The East Asian Challenge for Human Rights (1999) for essays on cultural and human rights, including discussions of Asian Values. See Susan Moller Okin, Is Multiculturalism Bad for Women? and the commentaries included for further discussion on multiculturalism and feminism (1999). For a response to Okin, see Serene Khader (2019). More broadly, Khader offers a defense of universal feminist justice that avoids cultural imperialism.

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just wars and humanitarian intervention Just war theories identify the conditions under which a war and its execution are justifiable. More recently, some theories also specify the conditions for a justified cessation of and exit from war. The aim of just war theories is not to grease the path for warfare, but to establish and identify moral constraints in order to limit its rightful occurrence and execution. So, just war theories don’t celebrate war. But they recognize that war is sometimes a moral necessity. As Leon Trotsky is supposed to have said, “you may not be interested in war, but war is interested in you”. In the real world, war is sometimes unfortunately forced upon us. What, for example, would be the viable alternative to mobilizing against the genocide and international aggression of Nazi Germany? And precisely because war, morally necessary as it is at times, is nasty business – “war is hell” as William Tecumseh Sherman famously declared – it is an activity that needs to be regulated and not left to the open discretion and calculations of belligerents. Thomas Hobbes thought that in war, “nothing can be unjust” and “Force and fraud are in war the two cardinal virtues” (1651, p. 85). Indeed, Sherman’s retort is meant to illustrate that ordinary morality doesn’t apply in war. The just war traditional, in contrast, firmly rejects this “all’s fair” approach to war. It is precisely because of the great costs of war that we need theories of just war to clarify when wars may be waged, how they are to be waged (even if a given war itself is justified) and also when and how it is appropriate to end a war. This chapter will introduce some of the main ideas in just war theories. In the first half, we discuss some key concepts of just war, including the distinction between the justice of going to war and the just conduct of a war. We will also look at a particular problem that this distinction creates regarding the scope of a soldier’s responsibility. In the second half of the chapter, we consider the special problem of military intervention.

DOI: 10.4324/9780367821531-8

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THE MORAL DIMENSIONS OF JUST WAR Was the 2003 United States initiated and led war against Iraq justified? Many observers and ordinary citizens believe that to be an unjustified war, particularly when it became clear that there was little evidence that Iraq was in a serious position to build nuclear weapons. But many of these critics will have a more positive opinion of the 1990–1991 war, also waged against Iraq, which was carried out in response to Iraq’s unprovoked invasion of Kuwait. And virtually all readers will agree that the war fought by the Allied Forces against Nazi Germany was a justified war. How are wars morally different? What are the principles by which we can assess the justness or the unjustness of a given war? Moreover, are there moral conditions for how a justified war has to be fought if the war as a whole is to be considered just? Is it the case that anything goes if you fighting a just war, or must a just war also be conducted under moral constraints? If so, what are these constraints? The identification of such principles is what a just war theory aims to do. While there is an established “just war tradition” in philosophy, there is no single just war theory. Some just war theories derive the morality of war from some universal and comprehensive morality. The classical natural law writings of Augustine and especially Aquinas are representative of this tradition. These theologian-philosophers attempt to specify when war, a violent activity, can be compatible with God’s law and Christian morality. Another approach is the social contract tradition that takes the principles of just wars to be among the principles of just international conduct for states that are identified and affirmed through an international social contract procedure. John Rawls in The Law of Peoples (1999) outlines a contractarian account of just war. And, as a last example, Michael Walzer, in his modern day classic Just and Unjust Wars (1977), advances what he calls the “legalist paradigm” approach to just war. On this account, to simplify, the standards of just wars reflect international legal norms and moral conventions, particularly those sanctioning the communal integrity of states and the right of states to territorial and political integrity. An unjust war is a war that violates, without cause, this integrity of states, and a just war is a war that is waged in response to this aggression. The right of states to political and territorial integrity is vindicated by the laws and norms of international society. Even a “bad border” (p. 58) – a state created by ancient or not so ancient injustice or one that was arbitrarily mapped out by colonial administrators – must be recognized, for the alternative is an anarchical world in which wars of conquest are business as usual. So there are different substantive approaches to just war. We will not go into the differences between these positions in detail, and we will skip over the rich philosophical history of just war theorizing. Our discussion will be more general and addressed to the common commitments of the just war tradition as a whole. To start, most just war theories draw a distinction between two dimensions to a just war. The first concerns the justness of a war, that is, the justification for going to war. Is this a justified war? The term for this moral dimension of just war is the Latin

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phrase, jus ad bellum (meaning the justice of war). The second concerns the just execution or conduct of the war, that is, how the war is being fought. This is known as the condition of jus in bello (justice in a war). Many just war theorists see these to be morally distinct and independent categories, since a war that is justified can be unjustly fought. For example, we agree that the war against the Nazis was a war that was justified. But we could also imagine this war being fought unjustly; if, for example, Allied soldiers committed war crimes in what would otherwise be a just fight. Likewise, soldiers forced to undertake an unjust war could conduct themselves justly in the execution of the war. A just war thus ought to meet the conditions of jus ad bellum and jus in bello. That is, the war has to be both justified and justly conducted; it has to satisfy these two distinct aspects of just war. Although many theorists take these to be independent dimensions of just war, as mentioned above, there are other just war theorists who challenge this strict separation. They argue, for instance, that an unjustified war cannot in principle be fully justly fought. We will return to this debate in due course. Recently, some just war theorists have introduced (or rather reintroduced) a third category of just war called jus post bellum. This has to do with justice after the war, a moral dimension that some theorists think should be included in an overall assessment of how just a particular war is. We will look at the conditions under each of these categories in turn.

JUS AD BELLUM Most just war theories identify some of the following conditions for an engagement of war to be just; that is, for the war to be justified. • • • • • •

just cause right or proper authority or authorization right intention proportionality last resort reasonable chance of success.

Just war theorists argue over which of the above provide the set of conditions that is necessary and sufficient for a justified war. For example, some think that right authorization should be part of this set of conditions whereas others are less sure. But what is worth keeping in mind is that no theory points to just one of the above conditions as sufficient and necessary. Even the condition that is seemingly most central – that of just or right cause – is not by itself a sufficient justification for going to war. A just cause may be present in a given situation, but going to war under the circumstance may be out of proportion to the cause; or there are other available avenues besides war that should be attempted first. So a just war theory will identify some combination of the above conditions as the necessary set of conditions for a

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justified war, and different theories will identify different set of conditions. Aquinas trademarked the first three listed above – just cause, right authority and right intention – as the necessary and sufficient conditions of jus ad bellum. Walzer proposes a larger set of conditions that includes all of the above except for proper authorization. There will also be disagreements in terms of more substantive details. For example, what constitutes a just cause for one theorist need not be for another; and one theorist’s criterion of proportionality need not be accepted by another. Let us quickly examine these commonly noted conditions of justified war.

Just cause Just cause is, as noted above, perhaps the most obvious of the necessary conditions for a justified war. A country that invades another country for the purpose of enlarging its political domain goes to war without just cause. Just cause includes the exercise of self-defense by a country against an unjustified attack. The right of selfdefense also derivatively justifies a third state or the international community coming to the aid of a country that is unjustly attacked.1 In general, a war is just if it is a necessary response to an unjust war. But another possible just cause that is not necessarily based on the state right of self-defense is that of defending the basic human rights of individuals against systematic violations carried out by their own state. A natural law approach to justified war will consider the defense of some moral law to be a just cause. On Walzer’s legalist paradigm, in contrast, countering an unjust war is a just cause, and a war is unjust if it aggresses, without cause, against the political integrity of a state as reflected in international law and convention. So, there can be disagreements among theorists as to what counts as a just cause, but the general requirement that there must be a just cause is basic to a justified war and easy to appreciate. Still the disagreement over what counts as a just cause is significant, and it is useful to quickly note some questions that this condition will excite. Should just cause be present only when there is clear violation of state sovereignty (as in an unjustified invasion of or aggression against a country)? But if so, what about cases where there are human rights violation but no obvious invasion (as when as state carries out large scale violation of the rights of its own citizens)? And what is so special about sovereignty anyway that its violation presents a just cause for war? But if we take the protection of human rights to be a just cause, whose conception of human rights are we working with here? A too liberal conception of human rights risks making the cause for war too permissive. On the other hand, taking violation of sovereignty to be the necessary just cause for war seems too state-centric. We will return to some of these questions when we discuss the problem of humanitarian intervention later.

Right authority More controversial is the requirement of right or proper authority. The requirement is that a justified war must not only have a just cause, but it must (among other things) be rightly authorized. Leaving aside for the moment what right

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authorization entails, why should there be this general requirement? The significance of this requirement is appreciated if we consider the difference between the state enforcing its laws through the police and enforcement of laws carried out by private vigilantes. The vigilantes may in fact be acting for the same cause and even with the same efficiency as state officials, but we would still think that something is morally amiss here. One central reason is that we believe the use of deadly force to be generally impermissible unless its use is authorized. We have delegated this power to the state (and its agents like the police) because it is necessary that the state has this power. Vigilantes, on the other hand, act without this authorization, even if their cause is otherwise just. Indeed, Aquinas holds that it is this legitimate authority of the state that distinguishes it from a band of brigands when it uses force to enforce its laws. There is a difference, then, between a state declaring war against another for a just cause and a group of private citizens declaring violence against the same state for the same cause. The last lacks the legitimate authority that the first enjoys. If the objective of a just war theory is to limit the space for permissible violence, then the right authorization requirement makes sense. In contemporary international society, right authorization for war requires more than a state’s unilateral authorization. There is a requirement that a war be authorized by the international community at large. According to international legal practice, this translates to authorization by the United Nations Security Council (UNSC). Again, if the aim of just war theory is to limit the grounds for going to war, requiring that a justified war be one that has international backing seems reasonable. Given the complexity of international politics and entwined national interests, international authorization is one way of helping to ensure that there is indeed a just cause for engaging in a given war. Individual states may too quickly judge that there is a just cause for war if their own interests are also at stake. The requirement of international authorization therefore provides an important safeguard against this possible confusion of just cause with state interest. We might then understand the requirement of proper international authorization as a kind of moral check against state biases, something that is especially important given the gravity of waging war. It is a safeguard against a state from unilaterally engaging in war. The difficulty with the requirement of international authorization is that international decision-making has become politicized. It is a common complaint that the United Nations Security Council consists of permanent Member States which have powers of veto over the Council’s decisions, and therefore whose conflicting national interests can block the necessary authorization even in cases where the cause for war seems overwhelmingly just and necessary. When this happens, some commentators would insist that there could nonetheless be proper authorization so long as there is sufficient coalition of countries in support of the war, and so this would be a morally justified war even though illegal (since there is no United Nations authorization). One could perhaps see the appeal of this, as in the intervention against Serbian aggression in Kosovo in 1999, often cited by commentators as a paradigm example of a purely humanitarian intervention. This was an intervention led by NATO but carried out without the authorization of the United Nations. On the other hand, it is less obvious that the 2003 war against

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Iraq, also carried out without formal United Nations authorization, was a justified war. In this case, requiring proper international authorization would seem to be an important moral safeguard.2

Right intention The right intention requirement is perhaps even more puzzling than the right authorization requirement. Why should intention matter if the cause is just and there is right authorization of a war? If justice is served, and moreover served by the right authority, why should it matter what the real intentions of the agent are? Again, this requirement can be easier to appreciate if we keep in mind the bloodiness of war and that the aim of just war theory is to limit and minimize the inevitable moral costs of warfare. Requiring that agents go to war with the right intention is one way to lessen the evil of war. If a state wages a war with just cause and with the right intention, then we can be more confident that this state will not act in excess and go beyond the cause for which the war is being fought. In contrast, a state that is waging war solely for self-interested reasons, even if war would be otherwise justified, cannot be fully relied upon to limit its goals to the just cause. Imagine a state engaged in a seemingly justified fight in defense of another state. If that state’s real intentions are to annex the aggressor state, then there is the danger that it would exceed its permitted moral objective. Moreover, it is reasonable to think that a state with ulterior motives can be less entrusted with carrying out that war justly. The right intention requirement then can also be seen as a way of helping to ensure that the conditions of jus in bello are not transgressed. An obvious difficulty with this requirement is that intentions are hard to measure. How are we to know what the real intentions behind a state’s act of war are? And how do we, moreover, make sense of mixed intentions? One might say that there can be right intention even among a mix of intentions. So it is not a requirement that the intention be pure, but that in the mix of intentions somewhere, there are also the right ones. So we might say that right intention is necessary but there is no need for purity of intentions. What is important is that the right intention is not extinguished along the way by the less noble intentions. For example, a country may join a fight because it genuinely intends to restore the sovereignty of an invaded oil producing country. But part of its complex mixed of motivations includes an interest in protecting the oil market. This impurity of intention does not itself present a problem. But it can become of problem if along the way the good intention gets pushed out by the bad one and the rescuing country decides to occupy the victim country in order to control oil production.

Proportionality This is the requirement that the act of war is proportionate to the cause that the war is to serve. The criterion of proportionality also factors among the conditions of jus in bello, in that it will limit particular strategies within a war. But as a condition for the right to war, proportionality requires that there is a proper balance between

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the moral cost of the war and the outcome that the war hopes to achieve or the bad that it aims to prevent. For instance, the loss of lives and regional or even international instability that a particular war might cause could be disproportionate in relation to its cause. As an illustration, one could argue that even if there is just cause to invade Iraq (in the name of protecting human rights), the cost of a war in Iraq drastically outweighs the expected benefit of the war. The basic idea is that, given that war has high moral costs, the cause for which a war is being fought must be sufficiently morally weighty to justify the act of war. Assessing the cost of war will no doubt involve military judgments about the type of war that has to be fought, the strategies that are available, and the scale and duration of the war. Now, the proportionality requirement might present a moral hazard. The more powerful an unjust aggressor is, the more costly a war is likely to be, and therefore the more difficult it is to satisfy the proportionality requirement. Hence, the more difficult it is to wage a just war against a powerful attacker. But, in wars of self-defense, it will be up to members of the state under attack to assess and evaluate the costs of war, when the risks of going to war and not going to war are predominantly borne by them.

Reasonable chance of success Given the moral costs of going to war, another common condition for a justified war is that it has a reasonable chance of achieving its objective. This reasonable success condition is closely tied to the proportionately criterion since that involves a cost benefit analysis. If there is no hope whatsoever that a war will realize a just cause or achieve its moral objectives, then it seems that this war stands to violate the proportionality condition. In contrast, a war with a reasonable chance of success can satisfy this condition even if we keep the costs of the war constant.

Last resort A war would not be justified, even if the above conditions are met (that is, there is a just cause, the war would proportionate to the cause, there is right authorization, and so on), if alternative non-violent solutions are available. So, if negotiations and political engagement are realistic responses to curtail a country’s development of nuclear warheads, then going to war to cut down its nuclear capacity will violate the last resort requirement. But, as Walzer points out, the idea of last resort must not be understood literally. There is always something more that can be attempted, one final diplomatic effort, one last attempt to broker a ceasefire etc. (Walzer 1977b, pp. 212–13). What the condition demands, more plausibly, is that feasible non-military options have been put to the test and have failed to produce results, and the urgency of the situation does not allow further attempts. The condition of last resort is thus adjusted according to the situation at hand. Intervening to put an end to human rights restrictions in a country could fail this requirement if there are realistic alternatives, such as economic pressures and diplomacy. On the other hand, if an act of mass slaughter is imminent, the urgency of the situation means that an intervention qualifies as the last resort, since anything else would be too late.

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The last resort requirement is perhaps better stated in the negative: war should not be among the first options. War must not be confused as politics by other means (with apologies to Carl Von Clausewitz), and we should attempt different political solutions towards peaceful resolution before pulling the trigger.

JUS IN BELLO A justified war, a war that meets the above conditions, could still be an unjust war on the whole if it is unjustly fought. For example, if the justified war against the Nazis had been won through a general strategy of targeting German noncombatants, that would have tainted the justness of that war, if not rendered it on the whole unjust. A just war therefore has to satisfy certain conditions for its rightful execution – the rules that regulate the conduct of the war. Some of the main conditions of justice in war or jus in bello are: • • • •

proportionality prohibitions on certain weapons proper treatment of prisoners of war noncombatant immunity: so while active combatants are fair targets, noncombatants are off limits.

The proportionality requirement limits the strategy that may be morally adopted within a war, even if that war is itself justified. So, even if a war against terrorism is a justified war, bombing a country “back to the Stone Age” for that just cause is plainly a violation of the proportionality condition. Just conduct in war also rules out the use of certain prohibited weapons, like biological and chemical weapons. The war against the Nazis would have been unjustly fought if (counterfactually) the Allied forces had used chemical weapons in that war. Norms governing treatment of prisoners of war dictate that they cannot be killed or otherwise mistreated. Prisoners of war are no longer active combatants and so are no longer a threat to the opposing side. But a very basic condition of jus in bello is the combatant/noncombatant distinction and the idea of noncombatant immunity. If the above conditions dictate how war can be carried out, and how and when killing is permitted, the condition of noncombatant immunity limits where and against whom war can be carried out. The condition of noncombatant immunity, perhaps the most important requirement of jus in bello, is for many commentators one of the key distinctions between an act of war and an act of terrorism. We will focus on this condition in our discussion. The noncombatant immunity clause implies that while (active) combatants are legitimate targets of war (that is, they can be justly killed), noncombatants are off limits. To gain some purchase on this clause then, it will help to clarify why most just war theories take it that combatants are fair targets. The basic justification for the right of one soldier to kill an enemy soldier is an argument from self-defense. The enemy combatant poses a threat to the life of a soldier.

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Even when the enemy is not actively engaging in a firefight, while she remains active (e.g., is not a prisoner of war or on military leave), she remains a threat. A soldier occupies a social role whose function it is to kill combatants on the opposing side; so long as she remains in that role (i.e., is not taken prisoner), she constitutes a threat. The rules of war thus justify the killing of combatants by other combatants because of the publicly acknowledged threat that they pose to each other by virtue of their roles as combatants. A combatant who has been taken prisoner is no longer a threat, and so there are no self-defense grounds to kill her. The self-defense argument that explains why combatants are legitimate targets also explains noncombatant immunity. By definition, noncombatants do not pose a present danger to the lives of opposing soldiers. The self-defense argument just does not apply in their case. Noncombatants may have a moral responsibility for initiating an unjust war, but since they present no imminent threat to the soldiers on the other side, they enjoy immunity. The basic moral distinction then between combatants and noncombatants is not moral innocence or fault, but the actual threat that they pose. It is important to note, then, that in just war theories, the term “innocent” when it is used, as in “innocent civilians”, is a “term of art” (as Walzer reminds us). It is not meant to express the absence of moral fault or blameworthiness for the war, though civilians could be innocent in this standard sense sometimes. What makes a noncombatant “innocent” in the relevant sense, and therefore not a fair target for attack, is that they do not pose a present threat that can justify preemptory self-defense, not because they are blameless. A just war is not meant as retribution, as in a form of punishment. War, rather, is more akin to an enforcement of law or moral right. The reason why soldiers on the unjust side may be killed is not because they are guilty of causing the war. On the contrary, they are not guilty of this charge in many cases. Moreover, a soldier could be fighting for the just side and still be considered a legitimate target of attack from the opposing side on the jus in bello convention. So, guilt has no role in the justification of combatant non-immunity. Rather, the justification for combatant non-immunity is based on the right of self-defense. Soldiers may be killed because they present a threat to the life of opposing soldiers. Assigning moral responsibility and guilt for a war and punishing wrongdoers is not part of a war effort but a matter for the law to determine. So noncombatants can be found guilty of causing an unjust war and may be punished accordingly. And combatants on the unjust side can indeed be morally faultless for fighting in that war. But this is distinct from the fact of threat that underlies the distinction between combatants and noncombatants during war. If punishing wrongdoers is to be considered part of a full account of just war, then it falls under the category of jus post bellum, that is, justice after the war. The violation of this basic distinction is that which distinguishes acts of terrorism from acts of war. Even if the cause that prompts an act of terrorism is just, the fact that the strategy involves the deliberate targeting of noncombatants renders the fight unjust in its performance. Moreover, terrorism is often carried out by belligerents who are not clearly designated as combatants, thereby undermining the

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combatant vs. noncombatant distinction altogether. This puts pressure on the other side’s ability to fight a war justly. This is because, when it is not clear who on the enemy side really poses a clear and present threat, then it is difficult to honor the moral distinction between combatants and noncombatants in the fight against terrorism. But a war against terrorism can be just only if that distinction is maintained. This is a moral responsibility and challenge for any war against terrorism.

JUS POST BELLUM This is a relatively new focus in contemporary just war theories (Orend 2002). Jus post bellum, or justice after war, is concerned with justice in the aftermath of a war, including, importantly, the conditions for a just surrender, peace and resolution. Jus post bellum also specifies terms of just punishment for the side responsible for the unjust war (who have violated jus ad bellum). Here the subject will be the decision makers and leaders of society and not the soldiers per se. However, jus post bellum will also address the issue of justified punishment for soldiers who are guilty of war crimes (that is who are in violation of jus in bello conditions). Other moral concerns of jus post bellum include the matter of just compensation and reparations for victims of the war. Jus in bello requirements carry over into the dimension of jus post bellum since conduct in a war can influence the prospects for justice after the war. For example, concerns of jus post bellum will provide further reasons against immoral conduct in war, such as mass killings of civilians, as they can make a post-war just peace and settlement difficult to achieve. The category of jus post bellum reinforces the non-guilt-based reading of the combatant/noncombatant distinction under jus in bello. As mentioned, the reason for combatant non-immunity and noncombatant immunity is not guilt or fault for an unjust war. This bracketing of guilt and responsibility for purposes of jus in bello need not be seen as a moral oversight if the question of guilt, responsibility and punishment and accountability for an unjust war is taken up by jus post bellum. That is, just war theory as a whole will eventually address the problem of moral responsibility and fault for an unjust war (under the auspices of jus post bellum), thus relieving jus in bello of this task. Closely related to but distinct from jus post bellum, which is concerned generally with justice in the aftermath of war, is the category of jus ex bello, which is concerned specifically with the conditions for a just exit from a war (Moellendorf 2008; also Rodin 2008). One can see why a war that is started must be followed through in some special cases, and not ended willy-nilly, if leaving the fight part-way will leave a country in a state of extreme anarchy and its inhabitants at the mercy of warlords. Even if a war is optional (that is, justified but not required), a country that starts it may become so morally entangled that it is not entitled to exit unilaterally and unconditionally. For instance, a permissible intervention once entered into may not be terminated unilaterally by the intervener simply because it feels the costs of

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intervention. An intervention that is left half-done can render the victims which the intervention is meant to protect particularly vulnerable to the retaliation of the aggrieved side. Thus, a complete just war theory has not only to identify the conditions for starting a war justly, it has to also identify the conditions for ending a war justly. Jus ad bello highlights an interesting complexity in the morality of war. It does not follow that the right thing to do with respect to an unjust war is to end it unconditionally. On the contrary, it can be unjust for a country to end an unjust war that it had started without first ensuring that the exit conditions are right. As an example, some commentators take the United States’ 2003 war against Iraq to be doubly unjust. It was an unjust war to start with, but it was also unjust that the United States too prematurely declared “mission accomplished”, and effectively quit Iraq, leaving it in a condition of lawlessness and civil strife.

THE MORAL EQUALITY OF COMBATANTS The standard distinction between jus ad bellum and jus in bello and the idea of the moral equality of combatants noted above has been the subject of some philosophical controversy in recent years. Let us outline and review this debate. The moral equality of combatants (henceforth “moral equality clause” for short) holds that soldiers on either side of the conflict have the equal moral right to kill enemy combatants, regardless of whether they are fighting on the just side or not (that is, whether the war that they are fighting is a justified war or not). The Nazi infantry solider, for example, has the same moral right as the Allied soldier to kill. On the standard argument noted above, since both, now that the war is under way, pose a dangerous threat to each other in their capacity as soldiers, each has the right of preemptive self-defense to kill the other. It does not matter that one party is fighting for a clearly unjust side, and the other for the just side. The moral equality clause thus relies on the distinction between jus ad bellum and jus in bello. Ordinary soldiers are not culpable for the justice of the war that they are fighting in. The requirements of justified war, or jus ad bellum, are the responsibility of political leaders and high-level military officials, typically. One might even be willing to extend this responsibility somewhat to a citizenry at large if citizens had some say (as in a democracy) in the decision to go to war, or if they supported the war effort in other ways. But soldiers, qua soldiers, on this account cannot be held responsible for the war. They are responsible only for their conduct in war as dictated by the conditions for jus in bello. That they might be fighting on the unjust side does not compromise their standing as soldiers, and does not give them a lesser right to kill opposing soldiers. Others, most influentially Jeff McMahan (2009b), have argued that this supposed moral equality of combatants seems counterintuitive. The general form of their argument goes as follows. In ordinary morality, we do not say when two parties present an equal life-ending threat to each other that each has the same right based

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on self-defense to kill the other. Rather, our assessment of the situation will take into account which party, if applicable, is responsible for putting the two sides in this compromising situation in the first place. If, for example, my wrongful invasion of your home puts both of us now in a situation of kill or be killed, it would be morally counterintuitive to say that we are morally on a par, that we have the same moral right to kill each other in the name of self-defense. So, how can it be, the argument goes, that the Nazi and the Allied soldiers stand in a relation of equality as defined by the moral equality clause? The moral equality clause therefore presumes the distinction between jus ad bellum and jus in bello. That is, it takes it as a given that soldiers are not to be held responsible for the war that is being waged and only for how they conduct themselves in that war. The distinction shields soldiers from having a responsibility for the conditions of jus ad bellum. So, if the soldiers on both sides are not to be held morally responsible for the war, even though one side is waging an unjustified war, none are morally culpable for the war. Qua soldiers, they stand on equal moral terms and on grounds of self-defense, following the arguments above, either side is equally entitled to attack the other. Standard just war theories will thus reject the home invasion analogy presented above. The analogy fails, in their view, because it extends principles of ordinary interpersonal morality to the morality of war. But war, according to the standard theories, is not individual morality writ large. Unlike the home invasion case, the invading soldiers on the unjust side qua soldiers do not have a say in whether to invade or not. That decision is made for them by the state. Their job as soldiers is to go where they are sent, and not to make the decision whether or not to go to war. As Walzer puts it, to give soldiers this responsibility and the right to decide whether or not to go to war undermines the whole purpose of a country having a standing army. It is this collective dimension of war, which the home invasion analogy misses, that accounts for the jus in bello and jus ad bellum distinction. Soldiers aren’t just individual moral actors. Rather they perform in their military capacity as members of a state (with a specialized role) and as members of a state, they have a strong presumptive duty to obey the commands of reasonably legitimate state to fight (cf. Renzo 2019). But the presumption that soldiers are not morally responsible for their state’s decision to fight is what the revisionist view is questioning. Why aren’t soldiers required to take responsibility in their capacity as moral agents for the decisions of their state, especially one that is as momentous as going to war? The debate hence depends on the degree to which soldiers can be reasonably held accountable for the collective (state) decision to wage an unjust war. One might allow that even if, as is in fact the case, soldiers in a democracy have a greater degree of influence on the state’s decision to wage an unjust war than in an autocracy, this is not sufficiently meaningful to upset the moral equality clause. Individuals in a democracy vote for officials to make laws in their name, who then decide on their behalf whether or not to go to war. But even if there were a referendum on whether a war should be waged, it cannot be presumed that all soldiers sent to fight actually voted in favor of it. One might retort that soldiers who oppose a war as unjust ought to conscientiously object to the war. But to allow soldiers the right to pick and choose which wars they will fight

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in would undermine the institution of a standing army. Indeed, we would reduce that institution to a band of mercenaries, as actors who get to choose their fight. Finally, there is the problem of information and knowledge. How much should we reasonably expect a soldier to know? What counts as a being reasonably informed of the facts? Do soldiers – in light of their specialized and lethal function – have more responsibility in this regard than civilians? To properly frame this debate, it is important to reiterate the very special case that the moral equality clause serves: it accounts for the equal right of soldiers to kill each other, independent of whether they are fighting for the just or unjust side. To say that there is no moral equality means that soldiers on one side have a reduced right not to be killed, and the soldiers on the other side have a greater right to kill them. But why should having a very limited and indirect say over whether your side should go to war or not so drastically alter your moral situation? Again, war is not about punishing people, much less about holding people morally accountable. A just war is a response to an act of aggression that needs to be stopped and to restore the status quo. Only after this special and urgent task is discharged, do the issues of punishment and accountability arise. It seems very plausible that citizens of a democracy can be held to greater account and be subject to certain punishments for an unjust war than subjects of a true autocracy. But it is a different thing to say that therefore they have forfeited their right to life.

MILITARY INTERVENTION The paradigmatic just cause for war is that of state self-defense. But another increasingly cited just cause, especially in modern history, is that of protecting persons from atrocities committed by their own state. In fact there was a moment in current world affairs, in the years following the end of the Cold War, in which wars to protect civilians from intra-state conflict became the more typical type of warfare. Are outside military interventions carried out to protect civilians from intra-state violence, or humanitarian interventions, morally justifiable? Does humanitarian protection provide a just cause for war? And assuming that there are conditions under which humanitarian interventions are justifiable, can there be a duty to intervene? Consider some examples. Most commentators now agree that the United States’ intervention in Vietnam in the 1960s and 1970s was an unjust intervention. Yet many also regard the NATO-led intervention in Kosovo in 1999 to protect the ethnic Albanians from the majority Serbian aggression as a recent paradigm case of just intervention. What is the salient moral difference between these cases? And how ought the international community to respond, say, to the armed conflict in Syria between the government and various civilian groups, where more than 250,000 Syrians have lost their lives (as of 2016)? Is a military intervention to topple the regime of Bashar al-Assad morally permissible? An account of justified or permissible intervention aims to shed some light on these questions. Finally, could any intervention be obligatory? Was there a duty to intervene to prevent the Rwandan genocide in 1994, a duty that the international community neglected?

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PERMISSIBLE INTERVENTION I think that few people will insist that humanitarian intervention is never justifiable. It might well be the case that, historically, interventions are rarely justified. But we can imagine conditions under which an intervention is, in principle, justified. Moreover, there are historical cases where an intervention was justifiable or would have been if one had been carried out. For example, a military intervention performed singularly to end the Nazi Holocaust would have been justified; intervention in Rwanda to put a stop to the Tutsi–Hutu genocide in 1994 would have been justified. Commentators also point to the intervention in Uganda in response to atrocities committed by Idi Amin and to the intervention by Vietnam against Cambodia during the Killing Fields years as examples of just interventions. The NATO intervention in Kosovo in Serbia, as mentioned earlier, is another commonly cited example of a just humanitarian intervention. The interesting moral question, rather, concerns the conditions under which intervention serves a just cause. While there are other possible grounds of military intervention, such as an intervention that is aimed at repelling an unjust intervention that has already occurred (counter-intervention), let us focus on humanitarian interventions, that is interventions motivated by the violation of human rights of subjects by their own state. How extreme must the violation of rights be for an intervention to be permissible? What form must the violations take? How do we balance the right, if not the duty, to protect individuals against the right of states to non-intervention? Some authors argue that a state enjoys a significant moral standing, including the right to non-intervention. Accordingly, intervention against a state is only justified in cases where human rights violations are severe and systematic, of the sort that “shocks the conscience” of humanity. The Nazi Holocaust obviously qualifies, as does the genocide in Rwanda. But not other cases like Iraq under Saddam Hussain in 2003. While human rights were being violated in Iraq in 2003, they did not constitute major violations of the sort that warranted intervention, according to this position. Under Walzer’s legalist paradigm, as we saw above, a just war is a response to an unjust war, and a war is unjust when it violates the political and communal integrity of a state. That is, a just war is necessarily a war in defense of “a historic community” against aggression. On this account of just war, interventions are harder to justify, since it is not clear how an intervention to protect the human rights of individuals against abuses by their own state is a response to an unjust war. But Walzer makes room within his theory for interventions in the following cases: intervention as a response to an unjust intervention (counter-intervention); an intervention to liberate a distinct historic community from an occupying state (in defense of a just secession); and intervention to stop violations of human rights of such extreme character as to debunk the notion that there is a common historic community deserving of international respect and protection (humanitarian intervention). So Walzer’s legalist paradigm allows room for military intervention consistent with his theory’s focus on the communal integrity of states. But the communal integrity starting point limits humanitarian intervention to the most extreme sort, as noted above.

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An alternative position takes it that violations of basic human rights to security and subsistence count as a just cause for war (Luban 1980a, 1980b). This is the case even if the violations are not of the sort that constitute genocide or mass killings. Thus, some commentators argued that the 2003 war in Iraq was a justified intervention since it served to protect the human rights of Iraqis against Saddam Hussain. An appeal of this account is that it does seem correct that Iraq under Saddam lacked standing; it would be what Rawls would call a tyrannical state. On the other hand, to jump to the conclusion that therefore an intervention against such a state is justifiable seems to lower the bar for justifying war. On this point, limiting the just cause for intervention to the most extreme forms of rights violations does seem sensible. A way, perhaps, of gaining the advantages of the two positions without the disadvantages, is to distinguish the question of a state’s moral standing from that of whether intervention against it is permissible. The two questions are not separate in that how we respond to the former can affect our response to the latter. But they are nonetheless distinct questions. Keeping the question of state moral standing distinct from the question of intervention, we can hold that a state (like Saddam’s Iraq) lacked moral standing because it violated human rights while maintaining that an intervention against it is impermissible because the violations are not of the extreme sort to present a just cause. To put this in the context of the authors above, we can say that while Walzer (1980b) is right about intervention he is wrong about the conditions of state moral standing (too permissive), and while Luban (1980b) is right about state moral standing, he is wrong about intervention (too permissive). Thus, it is perfectly coherent to affirm that respect for basic human rights is a necessary condition for a state to be in good standing, but only extreme and widespread violations of human rights present a just cause for intervention. Moreover, even if the just cause condition has been met, recall that a just war has to satisfy a set of necessary conditions beyond that of just cause. Specifically, will intervention meet the test of proportionality, even if the rights violation considered by itself presents a just cause? Second, is intervention a reasonable last resort? Third, perhaps more controversially, is there proper authorization? This requirement might seem out of place where human rights are at stake. On the other hand, given the tendency of state actors to privilege their own power and security interests, the requirement that a just intervention cannot be unilaterally decided on and executed can serve as a check against cognitive biases or even overt rationalization of a situation to one’s best political advantage. In any case, whether or not we include the requirement of right authorization as one of the necessary conditions for just intervention, some other conditions beyond just cause will be necessary. It does seem, at the very least, that the additional conditions of proportionality and last resort are significant. It might well be the case where certain atrocities, like genocide, are already being committed, that the last resort criterion is straightaway met. There is no time in this context for further talk and negotiation. And one might also think that the graveness of genocide means that it is rarely going to be disproportionate to go to war to end it (unless that would provoke some unusual catastrophic and large-scale retaliation). But this means that these conditions of just cause, proportionality and last resort are satisfied all at once, not that some of the conditions have become unnecessary.

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The above reasoning also shows that even if we regard low-level violations of human rights as presenting a just cause for intervention, it is easy to see how, if the rights violations are not of the sort that involve mass killings, that the last resort and proportionality requirements are harder to satisfy. The fact that political dissenters are imprisoned, that there is no freedom of expression and association, and that demonstrators are routinely beaten by state agents may be sufficient to nullify a state’s moral standing. Even if we say that such rights violations serve as a just cause for intervention, it seems that it will be hard to show how a war could be justified since it would fail the proportionality and last resort requirements. So, detaching moral standing from intervention, and keeping in mind that war is a form of enforcement that has inherently great costs, it does seem sensible that just humanitarian interventions be limited to the more extreme cases of human rights violations (for example, genocide, mass killings, and the like).

THE RESPONSIBILITY TO PROTECT Assuming that a humanitarian intervention is justified, would it also be an obligation? Consider the example of Rwanda. No intervention took place to block the genocide, but an intervention would have been permissible. The moral failure was that no intervention took place when it ought to have. That is, there was a presumptive duty to intervene that the international community failed to live up to. Indeed, the moral failure in Rwanda as well as in the Balkans prompted an international resolution on the “Responsibility to Protect” or “R2P”. The resolution, as its name reveals, turns the focus on the shared responsibility to protect individuals versus the permissibility of intervention.3 R2P shifts the paradigm in the international discourse on intervention by turning away from the right of states to nonintervention to states’ responsibility to protect their own citizens, and away from the permission of the international community to intervene to its responsibility to protect individuals against their own states. R2P, and the events, like Rwanda, that have prompted it, have instigated a lively debate in the philosophical literature on when and how a humanitarian intervention could be a moral duty. Where human rights violations are severe enough to permit military intervention, are they also severe enough to trigger a duty to intervene? If we maintain a very restrictive standard of permissible intervention, limiting justified interventions to only the most extreme forms of atrocities a state could commit against its own people (e.g., genocide), then it seems plausible that the conditions for permissibility also generate a duty. There is no gap then between an intervention that is permissible and an intervention that is obligatory. Thus, although ordinarily permission to do something does not necessarily create an obligation to do that thing, in the case of intervention, it is conceivable that a permissible intervention is immediately also an obligatory intervention. In any case, even if we allow that not all permissible interventions are obligatory (perhaps by lowering the requirements for permission to intervene), the international

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community acknowledges a responsibility to act in certain kinds of extreme situations. The prevention of genocide is one such example. Philosophical challenges remain, however, even if we grant it that the international community has a responsibility to intervene to protect. One challenge is that, while there could be a duty to intervene, this is an all-things-considered duty. If an intervention is too costly for the intervening state, then it does not have a duty to protect. Given the inherent moral risks and costs of going to war, it is up to individual states to determine the risks and costs that they are prepared to assume in taking up arms, and a state could not be faulted for arriving at a more conservative assessment of how it should act. Thus, effectively, the duty to intervene remains a duty in name only. This is a duty that is easily defeated by other considerations, in particular the moral risks and costs to the intervening state. Going to war is a dangerous business for the state as a whole and most poignantly for the individuals who are sent to do the fighting. Just as ordinary morality does not compel agents to act in ways that are selfsacrificing, so then there cannot be a duty to intervene if the cost of intervention is unreasonably high for the intervening state. But is intervention morally costly in a way that can in general annul the duty to protect? States do not face an existential hazard when they intervene, say, the way an individual does in risking her own life to rescue another. States are not natural agents with a biological life or limbs to lose when they engage in military intervention. It is true that a weaker country can face annihilation should it attempt to intervene against a much more powerful one. But in most typical cases of interventions, considering the Rwanda example again, prospective intervening states, like the United States or countries from European Union, need not fear significant military retaliation from the Hutu extremists perpetrating the genocide against the Tutsis. It is true that a genocidal regime could enjoy the backing of a powerful patron state, in which case, intervention would indeed be costly for the intervening state. But, again, it is important not to assume that all cases of intervention face this problem. The other challenge is that the responsibility to protect is a collective responsibility of the international community as a whole. This presents a problem because until some specific actor (i.e., state) is assigned this task, it remains the case that no particular state has a duty to protect. Philosophers sometimes refer to a duty of this sort as an imperfect duty: it is a duty that is not attached to any particular agent and hence not claimable by anyone in particular. The international community let Rwanda down, but no one state is morally at fault since none specifically had this duty.4 The basic challenge then is that while there is a duty to protect, from the perspective of the agents that matter (the states who are to carry the duty), it is only an imperfect duty, morally non-claimable and non-demandable. The significance of this challenge and possible solutions to it are matters of some discussion in the philosophical debate. In general, commentators hold that if there is a principled way of assigning that duty to some specific state, then the problem of imperfect duty is resolved. Thus some commentators, like James Pattison (2008b, 2010), suggest that given the urgency of the problem that an intervention is meant to prevent or put an

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end to, the duty should be assigned to the most effective or capable agent. The problem with this mode of assignment is that it seems to unfairly burden the most capable agent. We often hear the United States respond to calls that it should intervene (in places where it has no geopolitical motivation for intervening) that it is “not the world’s police”. If this is already unfair, it is even more so if the most capable became most capable because of certain hard choices and sacrifices that it had made in the past. Others might suggest cultural or historical ties to the people whose rights are to be protected. For instance, Belgium in the case of Rwanda, given their historical colonial ties; or, say, Albania in the case of Kosovo. But, as these examples suggest, countries with the cultural or historical relations may not be capable of responding, let alone be the most effective. Another solution that avoids the drawbacks of the two approaches detailed above and that has the added advantage of formalizing the duty, thereby making it in a sense also legally binding, is to institute a standing global humanitarian defense force. One could imagine this force operating under the authority of the UNSC, consisting of rotating troops from Member States of the UN. Since such a force would be specifically assigned, trained and equipped for humanitarian defense, and since it would intervene with the full weight of the international community and its support behind it, it would be an effective agent of intervention. And the actual composition of the intervening soldiers could be selected when it is helpful to reflect cultural and historical ties between interveners and victims. The institutionalization of an imperfect duty thus effectively renders it a perfect duty by assigning that duty to an institutional actor (Tan 2005). There have been some calls in the international forum for the establishment of exactly such a global defense force. If this is a necessary means through which the global responsibility to protect can be effectively acted on and realized, then the international community has the duty to create such a standing army. As Kant notes, an imperfect duty is still a duty. While there is room for agential discretion with respect to the performance of an imperfect duty, it is a violation of duty if one makes it a matter of principle not to conform with the imperfect duty. So, if we know that the creation of a humanitarian defense force is necessary for the performance of our shared responsibility to protect and we don’t go on to create such a force, then it is not a stretch to say that we have made it a matter of principle not to comply with that duty. Yet, some readers may worry about the feasibility of creating such a force. And details may present worries: what would the command structure look like? Who will take responsibility for its military strategies, have the final say on tactical trade-offs and so on? The above discussion introduces several philosophical puzzles, the resolution of which is required to answer the question of whether there can be a duty to intervene. Thus, is it true that states are not asked to go beyond the call of duty, to take unreasonable risks, when they are called on to intervene? Are soldiers being asked to exceed their role obligations when they are asked to face danger for the sake of the human rights of non-compatriots? Does the fact that there is no one assigned to take on the mission of intervening mean that the duty to intervene cannot be

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pinned on any particular actor and so it is not a duty that can be demanded of any particular agent? And is the institutionalization of this duty a necessary solution to this problem, and is it a feasible solution?

SUMMARY In this chapter, we examined the conditions for a justified war, and the conditions for rightful conduct in war. Different just war theories offer different understandings of some of these conditions. One feature of standard just war theories is that the conditions for a justified war and for rightful conduct in war are regarded as distinct features of just war. Soldiers are held responsible for just conduct in war but not normally for waging a war. An important implication of this is that opposing soldiers stand in a kind of moral equality vis-à-vis each other, regardless of the fact that the soldiers on one side could be fighting an unjust war. In the recent discussion on the ethics of war, one central debate focuses on this issue of moral equality of combatants. Just war theories also establish the conditions for a just military intervention. Since purely humanitarian interventions are not justifiable on grounds of self-defense, the basis of justification will be different from that of standard war. The general form of justification is that intervention is permissible when it is necessary for protecting the human rights of persons against their own state. The point which generates the fiercest debate is the extent and nature of human rights violation that is necessary for a justified intervention. Some commentators require there to be large-scale and systemic violations, as in a genocide. Others object that this makes the conditions for justified intervention overly restrictive. Finally, we discussed whether intervention, in cases where it is clearly permissible, could also be obligatory. Going to war, even for just cause, seems to go beyond the call of moral duty. On the other end, seen as a collective response, carried out by individuals who occupy particular social and moral roles in which the acceptance of risks is assumed, the act of intervening need not exceed that which we might expect of moral actors.

STUDY QUESTIONS 1 What conditions of justified war should be included in a theory of just war? 2 What counts as a just or right cause to go to war? Do you think that a right cause alone is sufficient for a justified war? 3 How important is just authorization as a condition for a justified war? Is this condition biased towards the status quo? 4 Are the dimensions of justice of war and just conduct in war distinct, such that an unjust war could still be justly fought? 5 What accounts for the moral difference between combatants and non-combatants? 6 Do soldiers fighting for the unjust side have the same moral standing as soldiers fighting for the just side? 7 Fighting with drones reduces personal risks to combatants. Should this affect the idea of the moral equality of combatants?

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8 Should soldiers be held responsible for the wars they fight, or only for how they fight? 9 Is intervention to protect human rights per se permissible? If so, what about the respect for state sovereignty? 10 What are some of the current events that raise question of whether to intervene or not to intervene? Would an intervention in these countries be justified or not? 11 Can there be a duty to intervene? And, if there is such a duty, who is responsible for carrying it out?

NOTES 1 See, for instance, Chapter 7, Article 42 of The United Nations Charter: the Security Council “may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.” 2 The US-led coalition claimed, however, that it was acting on a previous UN resolution on Iraq that was still in force. This was the UN Security Council resolution 1441 that dictated the terms of ceasefire for the first Gulf War in 1991, a ceasefire to a war authorized by the UN in response to Iraq’s invasion Kuwait in the fall of 1990. 3 See http://www.un.org/en/preventgenocide/rwanda/about/bgresponsibility.shtml [11 Sept. 2016]. 4 Although the sense of imperfect duty here is a bit different from Kant’s own, the distinction is most commonly Kant-inspired. See Kant (2008 [1785]).

REFERENCES JUST WAR David Luban, “Just War and Human Rights” (1980). Jeff McMahan, “The Morality of Participation in an Unjust War”, in Killing in War (2009b). Michael Walzer (excerpts), Just and Unjust Wars (1977b).

JUST INTERVENTION Terry Nardin, “The Moral Basis of Humanitarian Intervention” (2002b). Michael Walzer, “The Moral Standing of States” (1980b). James Pattison, “Whose Responsibility to Protect? The Duties of Humanitarian Intervention” (2008b).

FURTHER READING For an introduction to just war theory, see Brian Orend, The Morality of War (2006) and Helen Frowe (2011). For an alternative view to Walzer’s legalist paradigm, see David Luban, “Just War and Human Rights” (1980a) which argues for a human

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rights based notion of just war instead of Walzer’s state-centric account. For more discussion on the moral status of combatants, see Just and Unjust Warriors, edited by David Rodin and Henry Shue (2006). Massimo Renzo (2019) threads a middle path between the standard and the revisionist positions on this issue. Against the revisionist, he argues that soldiers are members of a political association and thus have a presumptive obligation to obey commands of the state, including the obligation to participate in a war that the state has deemed in good faith to be just. But against the standard view, the obligation (being only presumptive) is defeasible, and soldiers have the right and even duty to disobey when there is sufficient evidence that the war is unjust. For more discussions on intervention, see the edited volume by Terry Nardin and Melissa Williams, Humanitarian Intervention (2005). See Brian Orend, “Justice After War” (2002b) for jus post bellum and Darrel Moellendorf “Jus ex Bello” (2008) for conditions of just exit from a war. See also David Rodin, “Two Emerging Issues of Jus Post Bellum: War Termination and the Liability of Soldiers for Crimes of Aggression” (2008). See K.C. Tan (2004) for the need to institutionalize the duty to protect. See Gabriella Blum (2013) on the evolution of the idea of war as punishment, and Cecile Fabre (2012) on subsistence war.

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borders: immigration, secession and territory In the absence of a world government, any conception of global justice has to take as a given in our world the fact of bounded states. But what moral significance should we accord to state borders? The debate we are concerned with here is not whether there should be bounded states or not in a just world order. The issue rather is what considerations and problems of justice the fact of borders presents, and how these should be addressed. In this chapter we will draw out some of these philosophical issues concerning boundaries by looking at three related topics. The first has to do with the ethics of immigration. Do states have the right to keep individuals who are non-members out, through restrictive immigration rules? That is, can borders be used to keep people out and to determine who is a member and who is not? The second problem concerns the right of secession. Do states have the right to preserve their present boundaries against members who wish to secede, or can citizens have the right, under certain conditions, to break up a state? That is, does a state have a prior claim to its territorial boundaries such that there is a strong presumption against fragmenting it? Finally, the third issue has to do with territorial rights and jurisdiction. What accounts for a state’s right to its bounded territory that other states and nonmembers have to respect? Why do states have a strong presumptive right to their territorial space, and what are the implications for global justice if we grant states this presumptive territorial right? We will survey these problems in turn.

THE ETHICS OF IMMIGRATION Are states justified in restricting immigration into their country? Does immigration regulation wrongly constrain the freedom of individuals who wish to become DOI: 10.4324/9780367821531-9

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members of another state? Or are sovereign states justified in imposing barriers to entry, even perhaps closing off their borders entirely?

THE CASE FOR OPEN BORDERS Some philosophers argue that global justice would require the right of free movement of individuals and therefore a world of open borders. These arguments can appeal to principles of political justice and economic justice. The political justice argument holds that immigration restriction offends against the right of movement of individuals; the economic justice argument says that immigration restrictions violate the principle of equal opportunity. Indeed, so they argue, given that individual liberty and equality of economic opportunities are widely considered to be basic liberal values, it is especially egregious for a liberal state to control entry through strict immigration laws. Joseph Carens, whose writing on this subject has done much to frame the contemporary debate on the ethics of immigration, has made arguments along these lines (1987b). Consider the equal opportunity argument for open borders. Depending on how one spells out the requirements of equal opportunity, and the economic egalitarianism underlying it more generally, the case for open borders hits its limiting point later rather than sooner. If equal opportunity means equal opportunity to strive for equivalent life prospects, then the economic argument carries the case for open borders further than if equal opportunity means equivalent opportunity to meet basic needs. Nonetheless, in the world as it is, even the more modest reading of the equal opportunity argument is significant. It will renounce as illegitimate the common forms of restrictions on movements we see in place in virtually all liberal democracies. The argument from political justice attends to the basic individual liberties, specifically the individual freedom of mobility. Immigration restrictions get in the way of the exercise of this basic individual liberty, and are restrictions that liberal states ought to find particularly troublesome. After all, liberal states, as some commentators have pointed out, do not impose restrictions on personal movement within their borders. So how can they, consistent with their commitments, endorse immigration restrictions at the global level? This argument from freedom of movement remains in play even after the economic argument is played out. This basic individual right remains a right even if economic equality of opportunity, by whatever definition, has been achieved. That is, even in an egalitarian global order (whatever one’s definition of global equality might be), the case for open borders remains if the alternative presents a restriction on the right of mobility. If there is a moral right of free movement, then border control amounts to an unjustified coercion of individuals who “want in”. It is coercive of individuals because it prevents them from exercising an option that they have a moral right to.

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THE CASE FOR IMMIGRATION RESTRICTIONS In contrast to open borders, other philosophers emphasize the right of states to restrict entry, and to set their own terms of admission, into their political society. One argument for this right to impose immigration control invokes the right of a sovereign and legitimate state to self-determination. Self-determination implies that citizens of a state have the prerogative to regulate their economy as they see fit, to protect their natural environment, to maintain their distinctive cultural or historic identity, to maintain the racial balance of the country’s population (in the case of a multiracial society in which racial balance is a matter of state interest), and so on. On this reading of self-determination, states have much leeway in terms of justifying their immigration restrictions. Michael Walzer has made such an argument based on this wide reading of the right of self-determination (1983b). Indeed, for Walzer, there is nothing per se morally objectionable if a state implements a racial immigration policy. The difficulty with this kind of immigration restriction, for Walzer, will not be that it is morally repugnant per se, but that the case for it will be difficult to justify as a good faith policy in most countries, given that few states at present are racially homogenous. But he seems to prepared to bite the bullet and allow that in a case of a genuinely homogenous society and where it is really the will of people there to maintain its community’s “character”, a race sensitive immigration program is not unjustifiable. Walzer is attuned to other moral consideration that could temper the legitimacy of such an immigration policy. Consider his example of the White Australia immigration policy – officially called the Immigration Restriction Act of 1901, and formally renounced in 1973 – which effectively blocked non-European migration into Australia. Given the ethno-cultural composition of Australia in the early part of the twentieth century, Walzer’s view allows that the White Australia policy was arguably defensible qua immigration policy its racial implications notwithstanding. But what makes the policy unjustifiable are other considerations. In particular the policy runs afoul of the requirements of global economic justice since it meant that a very small number of people effectively had an exclusive claim over a large tract of the earth’s surface and the resources that go along with the territory. As Walzer memorably put it, “White Australia could survive only as little Australia” (p. 47). So White Australia is ultimately unjust because of distributive considerations, and not because it is a racialized immigration policy. But if Australians were prepared to give up some of its territory to the rest of the world, White Australia would have been justifiable. But other defenders of states’ right to regulate immigration will be uncomfortable with permitted states’ such wide discretion that allows discriminating on the basis of race. At the very least, these commentators will note that explicitly race-sensitive immigration policies cannot be justifiably implemented by liberal states. For one thing, it runs explicitly against the basic liberal idea of non-discrimination on the basis of race. Still, it is another thing to regulate immigration for purposes of maintaining a society’s public and political culture. This constitutes a legitimate interest that governments are permitted to satisfy.

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The argument from political culture takes it that a state’s political and social institutions are both reflective of and supported by an underlying societal or public political culture. For instance, democratic political institutions require individuals to respect the views of others, with whom they may vehemently disagree; to tolerate lifestyles from which they may personally recoil; to respect freedom of expression and association, even when the speech is personally offensive. Some commentators will include also a culture of mutuality that can sustain economic redistributive institutions in society. Generally, there is a need for a culture of respect, reasonableness and reciprocity. One might even go further to add a linguistic component to political culture, saying that for true democratic deliberation to take place, there must be some common languages among members of a society (Kymlicka 2001; Miller 1995). An appeal of the argument from political culture is that it is does not justify racial immigration laws since, presumably, compatibility with or affirmation of a political culture is race-independent. Still, it justifies admissions restrictions on the ground that free movement of individuals globally will dilute or even undermine the political culture on which a state’s political and social, including distributive, institutions rest. Given this important and legitimate interest that states have in maintaining their political culture, the open borders argument is thus put on the defensive. Moreover, regarding the claim that free movement is a basic right, opponents of open borders remind us that there is no such thing as an absolute individual right of free movement. Even within a liberal state, individuals aren’t absolutely free to move wherever they want. There can be legitimate reasons for restricting the right of movement, including that of protecting private property and national parks, security and coordination reasons, and the like. Thus, if states have a legitimate reason to control immigration, this could be just another instance of a defensible limitation on individual mobility (Miller 2007). The economic argument for open borders, as mentioned, carries as much force as is found in the conception of global egalitarianism that drives it. But in light of the possible legitimate interest that states have in controlling their membership, opponents of open borders argue that, even if we define the egalitarian argument robustly to mean that there must be equal opportunity for comparable life prospects, it does not follow that global justice necessitates open borders. This is because there are other distributive mechanisms, other than migration, for realizing global egalitarianism. Given the importance then of protecting its political culture, a state should have the option of discharging its global distributive duties in other ways besides opening up its borders. At best then, the open borders argument becomes a conditional argument. It will say something like: if you live up to your global economic obligations, then you are permitted to restrict immigration. Moreover, opponents of free movement have pointed out that if global justice is the main concern, then open borders in fact, rather than being a solution, exacerbate the problem. This is because of the phenomenon of “brain drain”, whereby it is the more economically advantaged and informed members of poor countries who will have the means to actually exercise their mobility right. But these are also the same

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individuals who can contribute most to their own societies and so whose departure will worsen the condition of their home country. While the above discussion for immigration restriction focuses on the collective right of a political community to control entry contra liberal arguments that emphasize the right of the individual, other philosophers have offered arguments from liberal individualism to support immigration restriction. One of these stresses the idea of individual freedom of association (e.g., Wellman 2005b). Individuals, in concert with others, have the right to not associate with persons they don’t wish to associate with, and immigration restriction can be justified on this right of non-association. Another argues that individuals have the right not to take on additional obligations that they don’t in general owe to persons at large. Since members of a state will have to necessarily take on special responsibilities for migrants, they have the right to refuse them membership based on their prior right to avoid taking on additional (special) obligations (Blake 2013a, 2020). The force of the freedom of association arguments will depend on the extent to which we can regard the state as a free association writ large, such that the norms of individual right of association (and dissociation) apply at the state level. After all, we as individuals don’t get to decide whom we want to associate and interact with in the public sphere. Who gets to become participants in our public arena is outside the scope of individuals’ right of freedom of association. It is one thing to say that I get to decide who I want to spend my free time with, invite to my home and so on; it is another to say that I get to decide who gets to hang out in the neighbourhood public park. The Wellman-advocate might reply that we the citizens as a collective body gets to decide who enters our public sphere. We are a community after all, and we get to shape the character of our community. But notice now the argument has taken a collective turn – it is no longer an argument about individual right of association but an argument about the state as a collective entity (à la Walzer). As for the avoidance of obligation argument, its force depends on how successfully it can be maintained that members of a state can refuse new members because of the additional burdens this might impose on them. After all, we don’t say that citizens have the right to deny fellow citizens the right to have children because of the additional burden they will impose on them collectively. Now one might say that this will be because of the very basic right of fellow citizens to have children (Blake 2020). But if this reply works, then it at least opens the path to more permissive immigration. What counts as a fundamental interest such that I may impose obligations on society in my pursuit of that interest? Why is having children more of a basic interest than say my interest in wanting to pursue my ideas of the good life in a societal and political culture that I find more conducive? These are not objections to the avoidance of obligation argument but they raise matters for further debate.

REFLECTIONS The debate on the ethics of immigration draws out certain philosophical issues over borders and justice. Do enforced state boundaries present a restriction on the

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individual right of mobility? Do states have a sufficiently weighty and legitimate interest to maintain their respective political culture, and is immigration regulation a necessary means of protecting it? One might think that even if there is something to the claim that states have a morally legitimate interest and right to support their political culture, it is questionable whether strict immigration controls, that are common in most countries, are necessary to this end. The argument from political culture may work to support some immigration control, but not the kinds of restrictions that are currently enforced. Thus, coupled with the mobility argument and the equal opportunity argument, one might argue that there is a case for moderately open borders. Furthermore, the economic argument for less restriction can stress that the conditional argument is still an argument: in an economically unjust global order, unless a well-off state is committed to moving some of its resources to nonmembers, it has no right to keep people from moving to its resources. This argument will have immigration implications for the majority of rich liberal democracies. The above discussions concern what we may refer to as ordinary migration. No serious defenders of states’ right to control immigration deny that refugees have certain urgent claims that can outweigh the right of political self-determination. Refugees are thus a different case from that of ordinary migration. Their demands for entry seem on the face of it more significant than that of the ordinary migrant. At the least, states will have an obligation to accept refugees up to the point where it can be reasonably demonstrated that further admission will corrode the state’s political culture and institutions. On this reading, most developed countries can take in a lot more refugees than they currently say they can. Of course, the definition of a true refugee is a matter of contention. Does this class refer only to those fleeing political persecution (and even so, what counts as that?) or can it include migrants escaping economic hardships? Even if we do not claim that the search for economic betterment per se qualifies one as a refugee, it is another thing to not acknowledge that one who is seeking an alternative to subsistence deprivation is a refugee. And how is the responsibility to receive refugees fairly shared among the possible host countries? These are some of the central normative questions surrounding refugees. The open borders position is motivated by two important values – the liberty of persons (to some degree of freedom of movement) and the economic rights of persons. In light of these and some of the more compelling considerations for some regulation of state borders, the more reasonable position is one that lies in between the extremes of open borders and state discretion. The present immigration laws of many well-to-do countries can be criticized as being too restrictive, but the option is not necessarily open borders but less restrictive borders.

SECESSION Secession is the withdrawal of a group from political union within an existing state. The seceding state can then opt to become its own independent state, or it may secede from one political order to join another (not annexation). Secession is, however, not just an exodus or mass emigration of individuals from a state to form or join

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another. Rather, and very crucially, secession has a territorial component. It involves the physical partition of the original state and the reconfiguration of its political boundaries in that some portion of its territory will be given over to the seceding side. Secession is relatively unproblematic when it is mutually consented to by both the seceding faction and the state. The secession of Norway from Sweden in 1905, and the division of Czechoslovakia into the Czech Republic and Slovakia, the so-called “Velvet Divorce” of 1993, are examples of mutually assented to secessions. When both host and seceding states agree to the separation, the secession is easier to justify. The problem of unilateral secession, in contrast, is less straightforward. Can some portion of a state have a unilateral right to secede from the larger political society without its consent? Under what conditions can a group of individuals come to have a moral right against an existing state to secede? Since unilateral secession is the more challenging case, and moreover the more common form of secessionist demands, I will focus on this type of secession in this section unless otherwise qualified.1 There is something to be said for ensuring the stability of states’ borders and thus to treat secession as an exception to a rule rather than a norm. Fragmenting a state can result in massive disruptions to the lives of individuals, precipitate mass migration, and cause regional or global instability. But many philosophers hold that, under certain conditions, secession can be justified. Moreover, given the potential moral costs of secession, to the host state as well as to some individuals in the seceding association, the permissibility conditions for secession will normally also include conditions on how the secession is to be executed. From the last remarks, we can see an interesting parallel between just secession and just war (as discussed in Chapter 8). Recall that there are three ethical dimensions that must be satisfied for a war to be overall just: jus ad bellum (the justice of going to war), jus in bello (justice in the conduct of the war), and jus post bellum (justice after the war). So too we may think of a fully just secession in these terms: a fully just secession has to justified, has to be carried out justly and post-secession justice needs to be maintained. Thus, for a secession to be fully just, the seceding state must have a justified case against the original state to break up with it (and to break it up in the process), the secession itself must be justly carried out (e.g., it does not involve the massive involuntary relocation of people), and that justice after secession can be assured (e.g., the rights of individuals who are now minorities in the new state are not violated). It might well be, as in the just war debate, that these dimensions while distinct are not morally independent in the sense that failure to satisfy one makes it impossible to satisfy the other. So it might be the case that a secession that cannot be justly carried out might suggest that there is no just grounds in the first place. This is a consideration we will run into below. But as with just war, these are distinct moral dimensions. We will focus on the just cause condition for a justified secession. The demand for secession is in the first instance and fundamentally a claim against the original state. So, under what conditions can a group within a state justly claim a right of separation against it? When is there a just cause? Typically when a group of people want to secede from a state, it is because the group believes it is being treated unjustly or is being oppressed by the state it has been forced to associate

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with. Consider, for example, the demands by Hong Kongers for independence from China. But in other cases, secessionist claims are made not because there is clear oppression or injustice but because members of the seceding group believe they constitute a distinctive community of the kind (for historical or cultural reasons) that is entitled to independent statehood (e.g., Catalonia, Quebec and Scotland). And there are examples of secessionist demands that are prompted by both the fact of oppression and the claim of cultural independence (e.g., Tibet). In line with the above considerations, Allen Buchanan has provided a helpful schema for debating secession (Buchanan 1991). He identifies two competing approaches to a justified secession that are now reference points for the contemporary philosophical discussion. These are (as he calls them) the “primary right” and “remedial right only” theories of justified secession. We will examine their pros and cons below.

PRIMARY RIGHT APPROACH The primary right approach, as its label suggests, takes secession to be a basic right in itself. Just as an individual may, in the name of self-determination, leave an association, so can a group of individuals in the name of collective self-determination opt to withdraw from a political association. The collective character of this exercise of self-determination is key. Most advocates of the primary right approach will require that the collective decision be made democratically, through a plebiscite or referendum. If the collective decision to exit satisfies the requirements of democratic decision-making, the collective has the right to secede. Different primary rights theories will thus propose different accounts of an appropriate democratic decision for secession. Can it be a simple majority? Or a super-majority? And who gets to vote? But whichever theory of democracy is adopted, the approach basically holds that if members of an association democratically elect to secede, they have the right to do so. This approach is thus also sometimes referred to as the democratic right model of secession. A distinctive feature of the primary right approach is that it puts the burden of proof on the original state. That is, a properly constituted self-determining group of persons have the default (ie primary) right to independent statehood. Some versions of this approach will flesh this basic right out in terms of the right of individuals to freedom of association. It is just a human right of persons to decide with whom they want to associate and from whom they want to dissociate. So if, for whatever reason, some specified group of individuals decide that they no longer want to remain in political association with the original state, they have the primary right of selfdetermination to go their own way. The onus will be on the original sate to explain why this separation and breakup of the state is impermissible. No doubt the primary right approach will have to confront and settle some complications. It has to show that the decision to secede in fact reflects the will of the (seceding) people. In addition, as mentioned above, for the secession to be fully just, the secession itself must be an act that can be carried out justly (e.g., without significant harms

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against bystanders and those remaining behind in the original state), and the result of the secession itself does not create an injustice (by turning some individuals in the seceding state into disenfranchised minorities). But the key feature of the primary right approach is that if it is truly the will of a people who are appropriately constituted to secede, then they have a justified cause against the original state to break it up. An immediate problem with this account of secession is that it seems overly permissive. In principle, this approach can allow, e.g., the state of California to secede from the rest of the United States if this is indeed the collective decision of Californians; or Vancouver from the rest of Canada if it is the will of Vancouverites. Some readers may find this acceptable and regard this as a virtue of the primary right approach. No one should be forced into association with anyone whom they don’t want to: “If a people wants to go, then let the people go”. But others will regard this as a flaw of the theory. Even if these acts of secession can be carried out justly, we might think that it is still too unacceptably permissive. The United States, or any country, should not be something that may in principle be so easily fragmented. There is value to some stability to the international system not least because it is necessary if individuals and countries are to be able to make long term plans, invest, and establish locational ties and interests. Why would the Federal government of Canada, and the rest of Canadians, be committed to investing economically and politically and culturally in Vancouver if there is the looming prospect of Vancouver striking out on its own anytime it wishes to? Thus the apparent permissiveness of the primary right approach might give some of us pause. In light of the concerns of over-permissiveness, some commentators would qualify and limit the scope of the primary right approach by limiting the type of association or demos that is entitled to exercise such a right. The right to contemplate secession is not an option that any association or collective has; rather, it is a right that only distinctive national communities have. On this nationally-constrained version of the primary right approach, Puerto Rico, Quebec or Scotland will have a primary right to secede from the USA, Canada and the UK, respectively, but not the state of New York, the province of Alberta or the city of London. Thus Buchanan notes a subdivision within the primary right approach, between “plebiscitary theories”, which take a democratic decision by any association to be sufficient grounds for secession, and “ascriptivist theories” which limit the primary right to groups that have certain ascribed features, like a distinctive nationality. Limiting the primary right to an ascribed group – like a nation – will limit the application of the primary right approach. But even this qualified primary right approach may not placate the primary rights critics. First, more of an aside here, the ascriptive thesis even if it succeeds in allaying the over-permissive objection exchanges that problem for another. It now has to turn to an acceptable theory of nationality in order to determine which groups properly counts as nations. In what sense is the state of Alaska or Texas not a national community in the way that say Hawaii is? I don’t mean that this is an irresolvable problem, but it introduces serious challenges. Second, even if we accept that there are clearly defined national groups at least in some instances (e.g., the Catalan nation), critics of the approach still

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object that even thus qualified, it is still too permissive. Many states in the world today are multinational or multicultural states. Besides more well-known cases of national movements for secession, such as Scotland from the UK, and Quebec from Canada, Spain is facing demands from Catalonia, Belgium from Flanders, and France from Corsica. The primary right approach, even in the nationally-qualified ascriptivist form, too eagerly greases the path of secession. While adherents of the primary right approach will take this permissiveness to be a feature of their theory of just secession, their critics will consider this to be a flaw. As mentioned, secessions are disruptive and can have attendant moral costs. So some will find it worrisome that the primary right approach has set the justificatory bar for secession too low. Among other things, the primary right approach will eliminate any long-term sense of security and stability of countries concerning their territorial integrity.

REMEDIAL RIGHT ONLY APPROACH In contrast to the primary right approach, the “remedial right only” (Buchanan) approach offers a more restrictive account of just secession. It grants the right to secede only in cases when secession is a reasonable last resort response to an injustice. The standard kind of injustices for which secession could count as an admissible means of remedy are limited to more significant forms of injustice, such as extreme violations of human rights namely genocide, and unlawful annexations – whose injustice is still felt rather than simply being a mere historical fact – that had forced the seceding group into the political union in the first place. To the extent that many systemic state violations of human rights, as in the case of genocide, normally target ethnic, national or religious minorities, the remedial right only approach will typically have national or distinctive minorities as its subject. It might well be the case, then, that just secessions on the remedial right only approach will apply mostly to national minorities. But this convergence is coincidental on the remedial rights view. On this approach, it is the fact of injustice and not the fact of nationality that is providing the justification. For example, when Bosnia and Herzegovina seceded from Serbia in 1992 this was a justified secession, on this account, not because of a primary national right to secede but because secession was a fitting response to the Serbian unjust treatment of Bosnians. Hence shared nationality is not a necessary condition, and more importantly not a sufficient condition, for a just secession. The presence of injustice of certain kinds is the necessary condition. If the primary right approach is too permissive in the eyes of some of its critics, opponents of the remedial right only approach will say that it is too restrictive. Why should an injustice be a necessary condition for a rightful secession? This skepticism is compounded when secession has to be seen also, as in most remedial right only theories, as a reasonable last resort. Does this requirement not raise the bar of just secession too high? After all, what counts as last resort for the seceding side can be seen by the other party to be an overly hasty response. So, isn’t it sufficient that a community sees itself as a distinctive historic community and therefore entitled to its own political society?

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In response, a proponent of the remedial right only approach will say that, given that a minority national community is already a member of a functioning state, that should be the default position and deviation from that will require strong justification, of the sort that ending an injustice provides. This may seem like a status quo bias, one that is in favor of existing state arrangements where there is no justice, but adherents of the remedial right only approach take this to be a virtue of their view. Given the great disruption that secession presents, as recounted above, even if the conditions for a just execution of a secession can be identified that will minimize its moral costs, there is something to be said for favoring the status quo. In short, the restrictiveness of its approach is embraced as a virtue rather than regarded as a problem. Moreover, the cases of nationalist secessionist movements that garner international attention tend to be cases in which there is also demonstrable injustice committed against the national minority. Thus, for the range of secessionist demands that feature highly in the international consciousness, the remedial right only approach is not necessarily too restrictive. Some defenders of the remedial right approach go further to expand the range of permissibility. They will say that an absence of equal recognition for national minorities counts as an injustice on which secessionist claims can be justly mounted. However, while this move eases the restrictiveness of the remedial right only approach, it comes agonizingly close to the primary right approach, if it does not collapse altogether into it. Quebec’s, Catalonia’s and Scotland’s secessionist demands, for example, are put forward on the grounds that equal recognition is practically lacking and unrealizable while they remain in the larger political society. These secessionist moves are demands for equal recognition in the form of political independence and political self-determination. That is, if the argument is that the mere fact of national or cultural distinctiveness means that there can be no equal recognition unless there is also political independence, the argument from equal recognition becomes indistinguishable from the primary right position.

EVALUATION As the saying goes, one philosopher’s modus ponens is another’s modus tollens. That is, that which is regarded as feature of a theory by one, and indeed its very point, can be regarded by another as a bug and as a reason to reject it. This is well illustrated by the disagreement between the primary right and the remedial right only theorists of secession. For critics of the primary right view, it is too permissive (even if it is qualified to apply only to national groups). For its defenders, however, its affirmation of the right of nations to political self-determination is its very appeal. Conversely, proponents of the primary right approach complain that the remedial right only approach is too restrictive: Why should the right of a people to an independent state depend on whether they are being oppressed under an existing political union? But this guarded approach to secession is the very appeal of the remedial right only

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approach for its proponents. Because of its great potential costs, secession is not something to be undertaken lightly, and should be permitted only under extraordinary circumstances. How we might resolve the debate between the primary right and remedial right only approaches will depend then on how we understand and weigh different competing considerations, such as the right of a national community to political selfdetermination, the right of established states to their territorial space, and the rights of individuals whose plans will be upended. Indeed, the reason why secession has to be justified is in large part because there is the presumption that states have territorial rights. We will turn to the topic of territorial rights next.

TERRITORIAL RIGHTS States have jurisdiction over a bounded space. The problem of territorial rights is in part the problem of explaining and justifying this right that states have over a geographical space. But there are two dimensions to territorial rights that we can further untangle. One dimension concerns the right of states to make and enforce laws which are binding on persons (most fully on its own subjects but also less extensively on anyone who happens to be within its borders) within a geographical area. That is, what gives the state this right to make and impose laws? And if this right of the state to make and enforce its laws comes with a corresponding obligation on the part of its subjects to obey the law, what accounts for this duty to obey? This is the domestic or local aspect of territorial rights. The other aspect is international in character. What gives states the right to exercise jurisdictional authority in a given geographical space to the exclusion of other states? Why should outsiders respect this jurisdictional right of any state to control a bounded piece of territory? States claim possession over land, sea and even airspace, but what makes this possession a claim-right, that is a right that puts other states under an obligation to respect? The local and international dimensions of the territorial right are related but are nonetheless distinct. A response that might be satisfactory as an answer to the local question does not necessarily address the international one. For instance, one might say, in response to the local question, that the state has a right to pass and enforce laws that are binding on persons within a given space because it is the function of the state to realize justice for its members, and having the right to make and enforce laws is a necessary condition for realizing justice. But accepting this justification of state authority over its subjects does not explain why outsiders and other states have to respect that state’s territorial claim. For example, it is not implausible that the state of Australia could continue to deliver justice for Australians quite effectively if the territory of Australia were reduced by a third. That the Australian state realizes justice for Australians might explain why it has political and jurisdictional authority over them, but it does not explain why the territorial claim of Australia has to be respected by other states and outsiders if a “little” Australia can realize justice for its people just as well. My focus in this section will be on the international aspect

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of territorial right. What gives the state its right-based possession over a bounded space, making it a possession that others have to respect? In response to the above question, one might propose a theory that presents a radical critique of the present international system. That is, one might defend a normative account of territoriality that shows why few if any states as they currently exist are morally entitled to their territorial possession. This is a philosophical option (the international equivalent of an anarchist criticism of domestic political authority). But if we believe that Londoners would owe the rest of Britain some explanation as to why they would like to secede, or (to use a real world example) that Iraq’s 1990 invasion of Kuwait was unjust because among other things it violated the territorial integrity of the Kuwaiti state, then we need some normative explanation for why states in the world today have a presumptive right to their territorial space. The attempt to make sense of the existing world order is entirely compatible with the acknowledgement that there are cases of territorial disputes, fuzzy borders, and very poorly established ones that can benefit from some realignment. But these are the exceptions that prove the rule, that existing states for the most part have a presumptive right over their territories. The term “presumptive” is important for it acknowledges that this right can be overridden. But it nonetheless takes such a right to be a default and that the onus is on those who would want to re-draw the global political map. So, why do we think that states, as they exist today more or less, have this presumptive right to their physical territories? Let’s consider some proposals.

LOCKEAN RIGHT OF ACQUISITION A state’s claim over a territory is not the same as the claim over personal property. Rather, the terms of personal property rights and ownership are worked out within a bounded jurisdiction. That is, a territorial right is the precondition of property rights. Still, since territorial right is not mere possession and the capacity to exercise de facto control over a portion of the earth, but a title and jurisdictional authority based on right, that is a claim and authority that other states have the duty to respect, it is not unreasonable to look to theories of property rights to see if they can help account for why states have exclusive titles over specific territories. One influential theory of property right is that of John Locke, which holds that ownership right can be pre-contractual, that persons can come to have a right over property in nature (cf. Nine 2012; Simmons 2015). According to Locke, what gives social value to a resource lying in nature is the work humans put into it. If natural resources belong to all persons in the world in the sense that no one has any prior claim to any of the earth’s land, sea and the items one finds there, as they remain in their natural state, as Locke holds, then anyone who adds her labor to an unclaimed space or an item in nature, thus giving it value, has come to rightly acquire it and is the rightful owner of the thing. This right of acquisition is subject to two conditions, however. Locke says that the acquisition must leave enough and as good for others, and that one may not acquire more than one can use, such as to result in spoilage and wastage.

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One might be tempted to extend this Lockean theory of rightful acquisition to the matter of territorial right in a straightforward way, by arguing that the state’s territory is the sum of the rightful acquisitions of land by individuals of that state. But it will be obvious why this cannot serve as a basis for territorial right. In most large states, there will remain land and resources that are uncultivated and unextracted by any individual. A straightforward application of Locke’s theory of acquisition to territorial rights will result in a contiguous territorial state. The Lockean theory, if it is to be applied meaningfully to the problem of state territorial right will have to take a “collective” turn: it will have to treat the state, or Locke’s commonwealth, the people, as the agent that is doing the acquisition. But, even so, the state as an agent does not add its labor to all the land within its boundaries. There remain wildernesses, conservation areas, unclaimed land (for stakeholders) to which the state cannot be said to have meaningfully added its collective labor and thereby have a rightful claim to them. At most, what the state has done is to put a “fence” around its claim, but this does not qualify as appropriation in Locke’s sense. More fundamentally, extending Locke’s theory of territory accentuates a problem commonly associated with Locke’s account of property right. This is that there is the problem of reasonable disagreement over whether something has been rightly acquired and whether the limiting conditions of rightful acquisition have been breached. This is distinct from the problem of right enforcement that Locke is aware of and which motivated, under his social contract theory, the formation of the state. The problem is not just that of enforcement of a right that is clearly established, but the difficulty of even establishing that there is a right. The problem of reasonable disagreement is more pronounced in the territorial case. Consider the following. Has the collective actor, i.e., the state, really added its labor to a certain tract of land within its proclaimed territory? And even if it has, is this leaving enough and as good of the same thing for others? And is any of this land going to waste through underuse or lack of care?

KANTIAN FUNCTIONALISM If the Lockean approach tries to justify territorial rights by looking to the past (i.e., by appeal to rightful acquisition), the next approach looks to the present. It focuses specifically at the justice-constituting function of the state. Hence this approach is often referred to as “functionalism” (Stilz 2011b, 2019b; Simmons [2015] uses this term but as a critic). The basic claim under this approach is that the territorial state is a locus or “site of justice” to borrow Michael Blake’s phrase (Blake 2013b), and the duty of outsiders to respect its territorial integrity derives from their natural duty of justice not to upset established sites of justice (Stilz 2011b; Waldron 1993). The underlying idea is thus a Kantian one: that we stand in potential violation of each other’s rights in a state of nature because of the indeterminacy with respect to how we should stand in rightful relations to each other. For instance, while my physical possession of a good (and which I have physically

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acquired without dispossessing anyone) gives me a right to it, it is unclear if I retain my right to it when I leave it to one side for a period of time. Does my excluding others from its use, while I am not hanging onto it, a wrong against them; and vice versa, am I wronged if others appropriate the object when I put it aside for a moment? This for Kant is the general reason why we have an obligation to exit the state of nature and enter into a civil constitution. Relations among persons based on justice, or “rightful conditions” as he calls it, cannot obtain otherwise. Individuals who find themselves unavoidably entangled with each other thus have a natural duty of justice to form a political society – with laws – so that they can live on just terms with one another. The state thus acquires its authority because of its necessary function of creating the conditions of justice for persons under its dominion. This is a sophisticated approach to territoriality. But it faces difficulties. One problem with functionalism as a basis of territorial rights is that it has to say states that are not successful sites of justice do not have a right to their territory. Even if what constitutes an acceptable site of justice is defined very permissively, it is still a very restrictive account of territorial rights. The functionalist position still has the awkward conclusion that in cases where a state fails to meet some criterion of justice, it forfeits its territory. But surely we don’t want to say, for instance, that Apartheid South Africa had no right to its territory. It is one thing to say that the Apartheid state government had no legitimate political authority over South Africans, another to say that the South Africans had no right to their physical territory. In short, the functionalist view seems to conflate state legitimacy with a territorial state’s very existence. Justice can only be a benchmark for state governmental legitimacy, not a benchmark for a state’s territorial possession. But there is another problem of disconnect with the functionalist approach. The proposal that individuals have a natural duty of justice to respect just territorial sites of justice is an eminently reasonable one. The problem for functionalism is that if this is the main consideration against violating the territorial integrity of states, we quickly run aground in some standard cases. For example, the duty to respect the justice constituting function of territorial states does not tell us why it would be unjust for anyone to take away a portion of a vast state like, say, Australia. It is not implausible that an Australian state that is a fraction of its current territorial size can equally effectively realize justice for Australians.2 The country has more space than it needs at present for this purpose. The same point can be applied to other cases, such as Canada, Russia, and even the United States. Thus to simply say that a state has legitimate authority over its subjects within a given space because it delivers justice for them does not suffice to show why that state (and its people) is internationally entitled to its established territory. Why aren’t outsiders permitted to take away some of this space for the purpose of instituting their own sites of justice, when doing so does not compromise the original state’s ability to secure justice for its members? Indeed, some critics have pointed out a further disconnect in the functionalist approach. The functionalist justification ignores the fact of special “attachment” (as

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Kolers calls it) to a specific territory. On the functionalist view, a territory is seen to be merely instrumental for the purpose of delivering justice for individuals; thus any habitable geographical space it seems will do. But this “bloodless” view of territorial rights misses the significance of territoriality in the real world. State don’t just claim some random territory for the sake of creating conditions of justice; they claim a particular territorial space, one that has significance beyond the instrumental one of providing a physical locale for the realization of justice. In short, the territorial right of a state is not just a right to a space in which to set up shop; it is a right to a particular location that has a special meaning for its political society. The functionalist will reply that justice for individuals is imperiled when an existing state is carved up because it violates the expectations of individuals (Australians for example should have security in their expectation that some unoccupied space in central Australia is theirs for the taking should they choose to move in and settle there). But this reply only raises the question of why anyone is entitled to form such expectations about uninhabited spaces in the first place. Why should these expectations have any moral standing from the point of view of outsiders? This reply thus begs the question for it assumes that there is already an exclusive territorial right. But this is the issue. Finally, perhaps the most severe challenge for the functionalist is as follows: What about the past? Does it not matter if a present functioning territorial site of justice was unjustly acquired? Functionalists naturally are attuned to this obvious problem. So they will insert a “non-usurpation” clause. They will say that a functioning site of justice is entitled to its territorial base if it came to occupy that space without usurpation, such as unjustly expelling previous occupants. But once we insert this non-usurpation clause, functionalism is forced to confront the past. It is no longer a purely forward looking thesis, but one that is in fact constrained by backward looking moral considerations. At the end of the day, the success of its argument turns on whether an existing locale of justice was justly acquired. Thus, if forced to acknowledge the past, functionalism will face the same basic problem that derails the Lockean acquisitive approach: many existing states will have to forfeit their territorial rights because of their history. The functionalist can at this point invoke a statute of limitation: let bygones be bygones; forgive past injustice with respect to territorial acquisition, and apply the non-usurpation clause after say 1928 (the date of the Paris Peace Pact). This is when we reset the world order. I am sympathetic to this move, as we will note below. But the problem is this is no longer a naturalistic argument. There is no natural or nonarbitrary expiration or start date for when states can start laying just claims to their territory. Rather, it is an acknowledgement that territorial rights are a function of the international system.

A CULTURAL RIGHT The above approaches, even though one is ostensibly forward looking and the other backward looking, are individualistic. That is, they attempt to ground a state’s territorial right in terms of what individuals are entitled to. Let’s now quickly consider

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two other possible backward and non-backward looking approaches that focus on the interests or rights of a collective. Let’s turn first to the argument from the cultural right of a national community. The territorial state is ideally representative of a national community, defined by its history, common language, and a shared sense among its members that they constitute a distinctive community, with a common destiny and so on. Nation-states are essentially territorial and have special attachments to their respective historic homelands because of how they have shaped that land by adding meaning and significance to it through a long period of time. Respect for the cultural identity of a nation-state therefore entails respecting and recognizing its right to a territory that has a special “cultural significance” for it. The state’s right to a territory is thus justified as a cultural right (see Miller; also Meisels). Cultural arguments for territoriality are not insignificant. They have been used to support claims of indigenous peoples for greater political autonomy and to support arguments for decolonization. But can the cultural argument provide the basis for a normative theory of the territorial rights of states? There are several immediate problems with this defense. First, the idea of nation-states is controversial. At first glance, we don’t always find a neat-fit between a national culture and the state that the approach requires. It is the case that some nationalist theorists define nationality broadly enough to be able to accommodate the USA as a distinctive nation-state (D. Miller 1995). This may be so, but then there are more clearly multinational states like Canada, Spain, Switzerland, etc where it will be too much of a stretch to say that the citizens of these countries see themselves to represent distinctive nation-states. (And this comment already brackets the further complicating fact of distinctive indigenous communities, as in the case of Canada.) Second, even if we can grant that (non-indigenous) Australians or Americans constitute distinctive and homogenous nationalities, how can this argument provide a basis for the territorial right of Australia or the USA? The only way the argument can do this is by artificially restarting the clock of cultural attachment at some point in human history. We will have to pretend that no other societal or national cultures (specifically indigenous nations) were destroyed or displaced in the formation of these new territorial states. Yet surely the cultural rights of these displaced groups also matter, if the cultural rights of present occupants matter. Again, there might be case for a statute of limitation of sorts in some of these cases, but an argument from nationality cannot as such furnish such a reason. More generally then, the nationality argument runs up against the problem of competing cultural claims. We can quickly find examples of territories that have historical-cultural significance for more than one group. Consider the dispute between Pakistan and India over Kashmir; or the hard problem of Israel. Where there are completing cultural claims to a land, the historical-cultural attachment argument can go either way depending on how far back in time we want to reach. Nationalist theorists are aware of these problems of territorial disputes. They

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will say that these are genuine hard cases and the historical-cultural argument can at least point to the relevant competing considerations to be taken into account. But I don’t see how this helps – if anything it introduces new layers of controversies. In particular, such disputes are rarely resolvable without considering other moral factors beyond that of historical attachments, such as the significance of present occupation, as well as the conventions and practices of the international order (as I will suggest later).

POLITICAL SELF-DETERMINATION Like the cultural-right argument, the political self-determination is collectivist but a forward looking one. (By a “forward looking” justification, I don’t mean “futuristic”: it means that the justification is not based on what has happened in the past.) States, as political societies, have the right of political self-determination. Basically, the self-determination of states requires a right to a secure territorial space in which to exercise jurisdictional authority. That is, there must be a geographical space in which laws are made, enforced etc, and in which collective projects can be planned and executed. Without a protected right of occupancy, without some expectation that the land on which it is exercising collective jurisdictional authority is secure, there will not be the necessary stability for making shared plans. A people can exercise political self-determination properly if it does so in the knowledge that another people cannot simply come along and question their right to the very territory on which it has organized and planned its political life (Moore 2016). The claim that there must be some security in a people’s occupation of a land or place for it to exercise self-determination is intuitive enough. But does it not also matter how the occupancy came about? As an obvious analogy, my actual residency in a house gives me no right to it if it is the case that I had knowingly forcefully displaced another person in my initial occupation of it. What lawyers call “the root of a title” is surely relevant here. So, analogously, it should matter too it would seem in the case of a people’s right of occupation. Like the Kantian functionalists, defenders of the self-determination argument can qualify their conclusion. Margaret Moore, for instance, writes that “[t]he group must occupy the land legitimately (meaning that it has not displaced some other group)” (Moore 2016, p. 8). Yet once we admit this qualification, we reintroduce the problem noted above: that which is supposed to be forward-looking is now constrained by the past. It is not a stretch to say that the territorial claims of many prominent and established states cannot survive this requirement. We need not go into ancient history here. Modern history alone will disqualify many major states as entities entitled to their territory: countries in the Americas, Australia just to name two obvious cases. J-J. Rousseau’s quip (albeit directed at personal property) neatly sums up the problem with forward looking defenses of territorial rights (functionalism or self-determination): if some people possess goods that “had been acquired solely by force,

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force could deprive them of them without their having any reason for complaint” (Rousseau 1755, p. 172).

AN ALTERNATIVE APPROACH The difficulty with the above proposals is that they can’t make sense of the facts: existing states for the most part have the territories they have not just arbitrarily but unjustly, acquired by force or cunning, or simply due to an administrator whimsically drawing lines on a map. We want to say that states today by and large have a presumptive rightful claim over their territories; yet the past gets in the way. The world largely agreed that Argentina violated Britain’s territorial sovereignty when it invaded the Falkland Islands in 1982. But can we also say that Britain came into possession of the Falklands justly? That is much more complicated. This thus raises the question: how do we square this right with the fact that the object of the right was not rightly acquired? The above arguments show in their different ways, and very helpfully, how territorial integrity is of value and interest to states. But my having an interest in X does not make it immediately my right to have X, not especially if others also have an interest in X. Australia may have an interest in its territorial integrity for the purpose of exercising self-determination. But we can well imagine, in this overly crowded world of ours, that other communities can also have an interest in possessing some of its territory for the purpose of their self-determination. Suppose Indonesia has an interest based in self-determination to set up its new capital in the interior of some uninhabited parts of Australia. What makes Australia’s interest in that territory a right, but not Indonesia’s? And even if an interest can be defended as an exclusive right in some cases, it is not clear that that argument can be generalized to cover all claims of territorial integrity. For example, it might be true that in some cases of territorial claims, a country does indeed have an exclusive cultural right to a place. Perhaps we might be able to grant that Iceland and Japan have a cultural right to their territories. But it is a different thing to generalize this cultural right argument to ground a theory of territorial rights. Surely the same claim cannot be made for many other states. How is the cultural right argument supposed to validate the claim of the United States to its territory? These arguments do not resolve the problem of reasonable disagreements over territorial claims. In light of the above difficulties, we might take the territorial rights of states to be at best provisional until sanctioned or affirmed by the international system (e.g., Ypi 2014b). On this approach, the territorial rights of states in the end are what we might call an institutional right in the sense that it is a right that derives from the practice, conventions and rules of the international order. The institutional idea then is that there must be some background public system of rules or convention before territorial possession turns into a right claim that others must respect. What grounds the right of a state to its current territory is the fact of an international legal convention to which all states are parties (Tan 2016). Even if

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we invoke some quasi-Lockean theory of acquisition to explain the territorial right of states (perhaps this argument can go some way but not all the way for the reasons noted above), at best any claim over territory remains provisional and not based on a right. The theoretical advantage of this approach is that it can offer a normative explanation for why a territorial violation by itself of the established (and internationally accepted) boundaries of a country by another constitutes an injustice. Suppose, for the sake of discussion, that Russia invades and occupies a truly unoccupied and an undisputed part of the American Arctic, and let’s imagine in this sanitized scenario that no individual was harmed or made worse off personally by this annexation.3 Would this be an injustice? Some just war theorists of a more cosmopolitan-­ individualistic bent could bite the bullet and say no, since no individual rights were violated in the annexation. But if we want to say that this territorial annexation is a wrong against the country of the USA, it is hard to find some innate moral reason as to why this would be a wrong (cf. Rodin 2014). The best normative explanation for why this is a wrong (and hence entitling the USA to take self-defensive measures) is that the international institutional order deems it to be so. Here one might attempt the reply that the locational interests and expectations of Americans are wrongly compromised in the annexation. So even no Americans are harmed directly by the annexation, Americans are harmed in that whatever expectations they may have formed with respect to this locale are now thwarted. But this move begs the question, for the very puzzle is: why is anyone wronged here? Why are the locational expectations legitimate in the first place? I can make personal plans and have expectations involving my neighbor’s house for the simple reason that I have no prior entitle to it. Thus if locational expectations of individuals are really violated in our stylized Russian invasion, we must first show why they are entitled to this territorial space to begin with. If the goal of a normative theory of territorial rights is to provide a radical critique of the present world system, then the non-institutional arguments we have considered provide much fruit for thought and consideration. But if the aim of any normative theory of territorial right is to make moral sense of the current world system – that states as they are more or less are entitled to territorial integrity – it is hard to see how any one of the non-institutional arguments can provide a sufficient justification. Rather than trying to seek an innate moral basis for the territorial rights of states, it is more productive to locate this right in the international institutional order. Indeed, until recently in the span of human history, wars of conquest and territorial annexation were standard practices, as “the continuation of politics by other means”, in Carl von Clausewitz’s celebrated phrase. What grounds territorial rights, what turns any provisional right a state might ever come to have over its land into a universally respected right, is the fact of an international legal convention that sanctions this right. A global institutional order is surely not a centralized state with the same powers and functions as the domestic state. But the important feature is not whether there is a state present globally or not, but that there is a recognized public system of rules that underpins the territorial rights of states. Saddam Hussain

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quickly learned the truth of this when he led Iraq into an outright and undisguised invasion of Kuwait in 1990, or Argentina in the Falklands in 1982. The institutional view of territorial rights reminds us that the international domain is not a global state of nature and that states are not natural entities with innate moral rights. The international arena is fundamentally a constructed order and states have the moral powers they have thanks to this artificial arrangement. What this means, among other things, is that there is a global institutional order that all individuals live under and that that this order must be responsive to the demands and needs of people living under it. The international system that grants states their territorial rights (as a matter of moral necessity for the alternative would be international anarchy) must be attentive to the implications of this grant on the lives of individuals. What are some of the moral costs of sanctioning the territorial integrity of states? What are some of the negative externalities of the state system? For instance, does the fact of the territorial state make it very morally significant where one is born or what one’s citizenship is? If so, what other commitments must the international system take on to assuage these costs? Could it entail greater global distributive justice? Could it require that states give up some of their discretionary right with respect to immigration? And finally, what about the past injustices that led to the present territorial possession of some countries? Does this mean that these countries must take on reparative duties as a conditional of their right to territorial integrity? The institutional view thus exposes a paradox of territoriality. It is necessary that states have (presumptive) territorial integrity; yet granting states this right comes with moral costs of exposing people to negative externalities and the ignoring of past wrongs. One way this paradox can be resolved is if the international order takes on duties of global justice to all subject to its power in order to legitimize this necessary arrangement. In this way, taking states territorial rights seriously can in fact put us on the path towards some robust commitments of global justice.

REFLECTIONS To take stock: one could try to defend a state’s territorial right as a natural right by appealing to Locke’s theory of ownership. As individual ownership is possible in a state of nature independent of institutions, for Locke, so too, on this argument, can there be a natural territorial right of states. The difficulty with this Lockean approach is not only that Locke’s theory of ownership is subject to reasonable philosophical disagreement, but that it is hard to apply Locke’s argument to a collective claim over a territory. Another approach focuses on the cultural and historical claims of states to a particular territory. This historicist approach avoids the presumption that territorial right is a kind of natural ownership right, but as a foundation for territorial rights it seems flimsy since historical and cultural claims over territories are fraught with indeterminacy and prone to competing interpretations. Alternatively, one might propose more forward looking arguments: territorial rights are justifiable because they are necessary for states to deliver justice for

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their individual members or because it is necessary for the exercise of the right of political self-determination. But these forward looking approaches, among other things, seem to downplay the fact of past wrongs. These arguments are continuing to evolve and develop and there is a lively internal debate among these rival theories. Finally, I noted a less commonly advanced alternative, which I called the institutional account of territorial rights. This way of thinking about territorial rights takes these rights to be ultimately derivative of the international institutional order. An implication of this institutional view is that if the international order must grant states the right to territorial integrity as a matter of necessity, then this institutional order must take on other responsibilities to all subject to it in order to be legitimate. On this view, the constructed nature of territorial rights requires that we take global justice even more seriously.

SUMMARY The case of immigration regulation pits interests of outsiders against the interests of insiders. We looked at arguments for open borders based on the right of individuals to free movement as well as implications of global egalitarianism. Against the open borders position is the view that states have a legitimate entitlement to control who becomes citizens. One argument of this kind is that states have an interest in maintaining the political culture of their society, and immigration restriction is a necessary means toward this end. While secessions can be destabilizing, they are not necessarily unjust. We looked at two approaches to just secession. One says that it is a basic right of a self-determining collective to form its own independent state. A more commonly qualified version of this primary right to secede view is that only groups that are political communities, or nations, have this right. Another view, the remedial right only approach, says that secession is permissible only in cases where it is the only response to an injustice, as when, say, a minority community is being oppressed by the majority group. Finally, we looked at territorial rights of states. How do states come to have a claim against other states based not on might but on a right to a possession of, and authority over, that territory? Some of the options include treating territorial rights as a kind of natural right that states have, based on just acquisition, cultural connection; or for purposes of realizing justice or self-determination. I propose, however, that none of these options on their own succeed in accounting for states’ territorial rights. In the end, it seems to me that territorial rights are rights based on international convention and institutions.

STUDY QUESTIONS 1 Does liberalism, given its commitments to individual liberty and economic justice, require free mobility of persons globally? 2 What legitimate interests do states have that border control can protect?

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3 Even if states are permitted some level of control over their own immigration policies, are present restrictions too strict? What standards can we reference when judging the justness or unjustness of a country’s immigration laws? 4 Consider current events. Are there cases where mass migration and border controls come into conflict? What can the positions we have discussed in this chapter say about these cases? Where do you stand? 5 Can there be restrictions on emigration? 6 Must a social group be a distinctive national group before it can secede to form its own state, or is it enough that a group is being treated unjustly and that secession is a necessary response to the injustice? 7 Which of the two approaches to just secession, the primary right approach or the remedial right only approach, has the right balance of permissiveness and restrictions on the conditions for a just secession? 8 What is the basis of a state’s claim to a bounded space? How is this a right-based claim that imposes obligations on other states to respect its territory? 9 Is a state’s territorial claim in relation to other states a moral claim, or is it a claim that has normative force only in the context of international laws and norms?

NOTES 1 In identifying the right of unilateral secession, the idea will be that the host state will acknowledge this right and thereby also consent to the secession. So, ideally, consent would follow from the right. But unlike mutually consensual secession, the right is independent of the consent. 2 There might be other reasons against doing this, for example, related to the rights of indigenous Australians to what might seem unclaimed land. But this move abandons the functionalist approach for a culturalist one. See below. 3 https://www.nytimes.com/2020/11/12/us/russia-military-alaska-arctic-fishing.html

REFERENCES IMMIGRATION Joseph Carens, “Aliens and Citizens: The Case for Open Borders” (1987b). Michael Walzer, “Membership”, in Spheres of Justice (1983b).

SECESSION Allen Buchanan, “Theories of Secession” (1997b). Christopher Wellman (excerpts), A Theory of Secession (2005b).

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TERRITORY Margaret Moore (excerpts), A Political Theory of Territory (2015b). A. John Simmons, “Territorial Rights: Justificatory Strategies” (2015). Anna Stilz, “Nations, States and Territory” (2011b). Anna Stilz. Territorial Sovereignty (2019b). Lea Ypi, “A Permissive Theory of Territorial Rights” (2014b).

FURTHER READING See Joseph Carens, The Ethics of Immigration (2013), for his most recent defense of open borders. Christopher Wellman argues from immigration restriction based on the freedom not to associate in “Immigration and Freedom of Association” (2008). Michael Blake, Justice, Migration and Mercy (2020), discusses the right of states to avoid unwanted obligations; and Gillian Brock in Justice for People on the Move (2020) puts pressure on the self-determination argument for limiting immigration. Gillian Brock and Michael Blake debate the relatively less explored converse question of the right to emigrate in Debating Brain Drain (Brock and Blake 2015). In her “Against the Alienage Condition,” Eilidh Beaton (2020) rejects the “alienage condition” – the condition of getting outside the territory of one’s own country – for refugeehood as morally arbitrary. For more on refugees (as well as migration more generally), see Gillian Brock, Justice for People on the Move (2020). See Cara Nine, Global Justice and Territory (2012) and Avery Kolers, Land, Conflict, and Justice: A Political Theory of Territory (2009) for books on territorial rights. Anna Stilz develops her Kantian functionalist theory of territoriality in Territorial Sovereignty (2019).

10 •

climate change justice: sharing the burden Global average temperature has increased by 0.8 °C since modern record-keeping began in 1880. The six warmest years on record (at the time of writing) were the previous six years from 2014 through to 2019, with 2016 setting the record-high and 2019 in second place (just 0.04 °C behind 2016).1 The main source of this global warming is the emission of carbon dioxide, methane and other greenhouse gases due to human activities, such as fossil fuel consumption and the logging and strip mining of land. It is no exaggeration that anthropogenic climate change is one of the gravest challenges facing humanity. Climate change is an especially profound problem of global justice as it puts at risk the very capacity of our planet to sustain human life. Climate science tells us that any further increase in global temperature must be limited to 2 °C. Past this point, global warming becomes irreversible. To stay within the 2 °C limit, the world must collectively reduce global CO2 emissions by 50–80 percent of 2000 levels by 2050. There is a growing global consensus on this. The United Nations Convention on Climate Change, drafted in 1992 at the United Nations Conference on Development and Environment (Rio Summit), and signed by 197 parties to date, acknowledges the global responsibility to address anthropogenic climate change. The 2015 Paris Agreement affirms the commitment to the 2 °C target. Encouraging as this Agreement is, compliance with is a different matter. 2 Moreover, many experts believe that targets set in the Paris Treaty are insufficient. Even if countries live up to their pledges, we still risk seeing a 2.7 °C rise by 2100. The hope is that governments will see their pledges as only a first step and that they can be encouraged to take on even more stringent emissions reductions.3 One major stumbling block to global action, indeed a major point of contention in international climate talks, is the question of how to distribute the global responsibility to cap total global CO2 and other greenhouse gas emissions among individual countries. Emissions reductions are necessary; yet they come with the opportunity costs of DOI: 10.4324/9780367821531-10

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economic development and growth. How can this collective cost or burden be fairly allocated to the different countries of the world? Low and Middle Income countries say that their right to economic development must mean that High Income Countries ought to take on a larger share of the opportunity costs of emissions reduction. High Income Countries respond that this unequal distribution of burden is unfair. The duty to control climate change is ultimately something we in the present owe to future persons. But it is a duty that will impose costs on people and societies in the present, and the question is whether there is a fairest way of sharing that cost among them. As Darrel Moellendorf asks, “How should this generational responsibility be divided intragenerationally within the framework of an international climate change] agreement?” (Moellendorf 2014, p. 163). The distribution of emissions rights is a central agenda item in international climate change discussions and will be the focus of our discussion in this chapter. Should the cost of climate justice be imposed equally on all countries, presumably adjusted for population? Or should the allocation of this burden depend on a country’s past and ongoing emissions of greenhouse gases? Or should this be determined by the specific economic capacity and needs of countries? Emissions reduction is just one challenge of climate change. Another means of mitigating the rise in global temperature is by developing heat-trapping technology (e.g., carbon sinks). But in addition to the mitigation, there is also the strategy of adaptation. Adaptation strategies, like emissions reduction, are social and economic burdens that can be more or less justly distributed. Some of the costs of adaptation include the expense of building sea walls and levees in low-lying island states, the costs of revising and changing agricultural practices, and the costs of confronting more pervasive tropical diseases. There is also the very significant but real challenge of relocating and resettling entire communities (say in response to rising sea-levels). The considerations we will bring to bear with regard to how to justly share the burdens of emissions reduction are thus also relevant and apply to the adaptation burdens: who should assume most the costs of adaptation? If it is unfair to expect, say, the Pacific Island nations, like Kiribati and Tuvalu for whom rising sea levels, due to the melting of the polar ice caps, is already a reality, to bear the entire economic costs of building levees and relocating communities, then the burdens of adaptation must be globally distributed in a way that is fair. Thus, a more complete account of climate justice will have to take into consideration the fair distribution of both mitigation and adaptation burdens, and (as I will note below) our understanding of what counts as a country’s proper share of its mitigation burdens must be adjusted against whatever adaptation price it is already paying. To better focus our normative discussion, however, we will limit our analysis to emissions reduction.

CLIMATE JUSTICE AND THE RIGHT TO SUBSISTENCE At the 2015 Paris Climate Conference, the Chinese President Xi Jinping acknowledged the common global responsibility to combat climate change. But he also

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insisted that “[a]ddressing climate change should not deny the legitimate needs of developing countries to reduce poverty and improve their people’s living standards”.4 Similarly, the Prime Minister of India, Narendra Modi, argued that poor countries should have the right to continue to increase their rate of fossil fuel consumption for the purpose of economic development, the global responsibility to counter climate change notwithstanding.5 The above official statements reiterate a long-standing contention in international climate negotiations. Underlying these remarks is the principle known as the “Principle of Common but Differentiated Responsibility”. This principle, proclaimed in the Rio Declaration, holds that while addressing the problem of climate change is the responsibility of all countries (hence a common responsibility), this collective responsibility should nonetheless be asymmetrically allocated to countries depending on their background circumstances, such as their varying economic needs. The Principle of Common but Differentiated Responsibility stands in contrast to the view that the burden of climate justice ought to be shared equally by all societies regardless of background conditions. These considerations bring to the fore a central question in climate justice debates. How should the right of poorer countries to economic development be balanced against their duty of climate justice to reduce fossil fuel consumption and extraction? Henry Shue, who defends the basic right to subsistence (see Chapter 2), makes the important distinction between subsistence emissions and luxury emissions (Shue 1993b). Subsistence emissions are emissions that are necessary to maintain or to achieve economic subsistence in a society. Luxury emissions are emissions for the purpose not of subsistence but luxury items. Thus, releasing CO2 in order to provide for the basic energy needs of a society is a subsistence emission, whereas releasing pollutants by, say, driving large SUVs is a case of luxury emissions. The general idea here is that countries have a presumptive right to engage in subsistence emissions in the name of the right of subsistence. But luxury emissions are a different matter. This is a privilege subject to override by other moral considerations. Thus, given the fact of climate change, richer countries have a more demanding duty to reduce their emissions. This basic distinction between subsistence emissions and luxury emissions reflects the spirit of Common but Differentiated Responsibility. But the difference between subsistence and luxury may not suffice to systematically ground an asymmetrical assignment of climate justice duties. One person’s luxury is another’s subsistence. Is the second household car a luxury or a matter of subsistence? Some might insist that in suburban America, it is a matter of subsistence for a working family. Also, if we define subsistence too modestly, it is possible that countries like China and India will have to very soon cease emitting pollutants, when they have achieved some defined standard of living for their citizens, even though they will lag far behind the United States and other developed countries in terms of economic development. Limiting permissible emissions to subsistence emissions (on a very modest definition of subsistence) may be too restrictive then in light of countries’ right to sustainable development. On the other hand, in light of the urgency of the climate problem, emissions even for developmental purposes cannot be completely unchecked and restrained.

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But the basic idea behind luxury emissions versus subsistence emissions is that there ought to be different emissions entitlements for different countries depending on their economic situations. What we need then is a principle of emissions distribution that can both ground and provide content to the idea of differentiated responsibility. Moreover, as Shue also points out, we need also to know who has to pay, so to speak; that is, which countries can be rightly expected to carry the larger share of the global burden to reduce the earth’s total greenhouse gas emissions. Is there a distributive principle by which to systematically justify and specify an asymmetrical allocation of the burden of climate justice among countries?

EQUAL PER CAPITA EMISSIONS One way of allowing developing countries like India, China and Brazil to emit more greenhouse gases than developed countries like the USA, Canada and Britain is to give every country an equal per capita emissions quota. High per capita polluting countries are thus required to reduce their emissions to the levels they are entitled to. Thus adjusted, more populous but poorer countries like China or India as a whole will be permitted to emit more greenhouse gases than the USA, Canada or Australia. Indeed, when we consider that the per capita emissions of CO2 of Australia and the USA are 16.5 and 17.0 metric tons respectively for 2011–2015, compared with 6.7 and 1.7 for China and India respectively, the equal per capita emissions approach (EPC) can require a significant total emissions reduction in the USA and Australia while possibly permitting China and India to continue in their economic development goals.6 The moral ideal behind EPC is presumably something like the equal rights of individuals to emit greenhouse gases (or, in the converse, the equal responsibility to reduce their emissions). The egalitarian character of the equal per capita emissions approach no doubt has appeal. It will distribute the burden of climate justice to each individual equally, in a sense, and this seems eminently fair from an individualistic moral perspective. EPC can be seen as a principle of allocation that, on the one hand, allows developing countries to emit more, while maintaining, on the other hand, the idea of equality. But the fairness of EPC comes under pressure on further analysis, according to its critics. EPC might be an appropriate end-state that the world community should aim for. But to deploy this standard at a time when some countries are still struggling with the problem of extreme poverty and playing catch-up with more developed economies is to ignore the right of economic development. It would be somewhat akin to saying that each individual has to pay an equal amount in taxes to society regardless of her income and wealth and basic needs. The basic problems of fairness with the EPC can be diagnosed as follows. First, it is indifferent to parties’ past contribution or fault with respect to the problem of climate change. That is, it seems to take a time-slice approach to the problem: however the situation in need of remedying has come about, everyone must now accept an equal share of the burden to fix the problem. We might decide on further analysis

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that past contribution to a problem is normatively irrelevant, but we must at least be attuned to this question. (We will in fact turn to this question below.) The second problem with EPC is that it is indifferent to the fact of background inequality and the varying abilities of countries to bear the costs of emissions reductions. It holds that weak and strong alike are to be equally charged with addressing the problem. That some countries have more economic needs than others is not given consideration under EPC (Moellendorf 2015b). Moreover, EPC seems to “fetishize” emissions as Simon Caney puts it (Caney 2005). EPC gives the impression that all that matters is the distribution of emissions entitlements as an end in itself, when in fact emissions are merely means to other ends that people value. For example, whether we adopt a primary goods (or resource-based) approach to distributive justice, a capability approach or a well-being approach, one’s share of emission entitlement is just one ingredient of the good that we are seeking to distribute fairly (see Chapter 2). Suppose we take primary goods to be our equalisandum (the thing that we want to distribute fairly). How we ought to assign to a society its emissions quota, then, must be informed by its current holdings of the primary goods as a whole. All things being equal, a country with lower resource holding can be granted a higher emissions quota than a country with a higher resource holding since this might be how we equalize each country’s share of primary goods in total. It is, in principle, possible that the equilibrium point – the point at which each country’s per capita share of emissions cap is equal – is also adequate for meeting the 2 degrees Celsius target. For instance, at the extreme, we could imagine an equal per capita cap that is close to zero. But if we take both climatic sustainability and economic development into consideration, it is more likely that, in the short-term at least, poor countries will need a higher per capita cap than rich, developed countries. That is, they will need to increase rather than reduce their emissions, and this increase has to be offset by additional significant reduction by rich countries.7 In sum, the core worry is that EPC is too ahistorical and insensitive to present contingencies. It ignores past actions by imposing equal responsibility on all persons. More poignantly, it brackets the differing development needs of countries and their corresponding capacities to shoulder the cost of climate justice. Opponents of EPC believe that differential responsibility of climate justice means that poorer countries may emit more greenhouse gases per capita than wealthy countries so long as global poverty remains a problem of global justice. On their view, what is required in the name of both climate justice and economic right in the interim is that poorer countries be permitted to continue to increase their per capita fossil fuel consumption, and that this increase ought to be offset by a corresponding decrease in the per capita consumption in developed countries.

THE POLLUTER PAYS PRINCIPLE An alternative principle to EPC is explicitly historical. We saw earlier the Indian Prime Minister’s call for differential responsibility based on the right of economic

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development. But Modi also appealed to a separate historical argument at the Paris talks. He said, “Climate change is not of our making”. Rather, he continued, “It is the result of global warming that came from the prosperity and progress of an industrial age powered by fossil fuel.”8 For this reason, he concluded that rich industrialized countries which have polluted the most should accept special responsibility to counter climate change. The ideal behind Modi’s position can be summed up by the retail slogan, “You break it, you buy it”. In climate justice speak, this is known as “the polluter pays principle”. The polluter pays principle (PPP) can be understood as a fault-based principle of responsibility assignment. It assigns the duty to remedy a problem to the actors whose wrongful actions or moral neglect has created the problem. The temporal span that is presumed under this principle obviously determines the set of agents that the principle can target. If we adopt a narrow time horizon, and focus on current or recent emissions activities (say, over the past two to three decades), the principle may very well implicate rapidly growing economies like China, Brazil and India (given their enormous greenhouse gas contributions in recent times), while possibly letting some highly developed economies off the hook as they become better positioned to develop green technology and reduce their current fossil fuel consumption. But this assignment of responsibility is contrary to the intent of proponents of PPP. The spirit behind PPP is that advanced, developed countries, such as Britain, Germany or the USA, should bear greater responsibility for climate change since they have enjoyed the benefits of industrialization longer than countries like China and India have, and therefore have historically emitted more greenhouse gases. PPP is meant, therefore, to have a longer time frame so as to take account of cumulative historical emissions since the Industrial Revolution. Yet the further back in time PPP reaches, the knottier the philosophical problems it confronts. Suppose we accept, reasonably, that Britain began contributing to climate change from the time of the Industrial Revolution, around the late 1800s. Also, suppose (and here more controversially as we will see) that these polluting activities are morally objectionable because they contributed to global warming. One might conclude from these premises that some compensation is owed by Britain to those who are suffering the consequences of its past moral failure or neglect, and this responsibility will take the form of accepting a higher emissions reduction cut. But this would be too quick, as most readers will see. Even if we grant the argument’s premises, the conclusion does not follow. “Why should present Britons bear the duty of reparative justice to make amends for the sins of their predecessors?” PPP thus introduces the philosophically interesting topic of reparations for past wrongs. Reparative justice obligations are relatively easy to account for when the wrongdoer is still available to take on reparative duties. But reparative justice gets complicated when it has an intergenerational dimension, that is, when it is addressed to an injustice committed by a previous generation. Can the sins of a previous generation be visited upon the present?

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The question of reparative justice for past international injustice is an important topic in global justice as it engages with other normative problems in international relations. Besides climate justice, it makes an appearance in discussions on compensation for European colonialism, and also discussions of land reclamation for indigenous peoples. (In the domestic case, as in the United States, there is the question of reparations for African-American slavery.) In these cases, as with PPP, the central philosophical issue is this: how can the wrongs committed by individuals in the past fall on persons in the present to atone for? In some other cases of past international injustices, the problem is compounded by the absence of the recipient side. In the case of colonialism, for example, not only are the individual perpetrators of the (alleged) injustice no longer present, but it is also not obvious who the individual benefactors of reparative justice ought to be since the victims of the past injustice are no longer present. We note these other interesting cases of reparative justice, only to return to the topic of PPP.9 It is true that the effects of global warming are present and ongoing, so if contributing to climate change is an injustice, it is an injustice for which there are present victims to be compensated. The problem, however, is the first one noted: how can we hold the perpetrators to account when they are no longer alive? Isn’t it unfair to make some present individuals pay for their misdeeds simply because of national or generational association? One possible solution to this problem of intergenerational unfairness is to adopt a collectivist approach to moral responsibility and obligation, as opposed to the stringently individualistic one (that the problem of intergenerational unfairness seems to take for granted). On this collectivist approach, it is (say) Britain as a collective moral agent, as a national community, who is responsible for the past emissions. Thus, it is Britain now as that collective agent who has to repair the damage. Accordingly, there is no unfair passing of the buck from the guilty to the innocent. The culpable actor is the society as a whole, and it is the society as a whole now that has the duty to make amends (see Miller 2007; Butt 2009). A counter-argument against this collectivist turn is that, at the end of the day, the collective responsibility of repair must trickle down to individuals (who are the ones to actually bear the costs, after all). Granted that it is the national community as a collective agent that has the responsibility of repair, but a nation is made up of individuals, and it is still going to be living individuals (who had nothing to do with the injustice) who will ultimately have to foot the bill. Doesn’t the original problem of intergenerational unfairness reappear, since innocent individuals are expected to answer for the sins of their forebears? But this counter-argument, absent further elaboration, too hastily assumes that any common social obligation a society has can be passed on only to those individuals who bear some fault for the problems to be addressed. But this is, of course, hardly the way we normally think of individual societal obligations in general. Instead, we normally accept that individual members of a society can be required to take on their fair share of social obligations to address societal issues independently of their past contribution to or neglect of these issues.

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For instance, we all share responsibilities of justice as individuals to address common societal problems of education inequality, lack of adequate public health care, social inequality, and so on. That is, as individuals, we each have a range of civic duties and responsibilities, many of which are aimed at problems that have historical root causes but which we personally played no role in bringing about. If our society has a duty of justice to confront certain problems of justice, then each of us as individuals has some share of that responsibility, not because we were somehow at fault, but because of our membership in that society. The collectivist turn is a promising solution to the problem of reparations for past international injustice. But its full defense will require some deeper understanding of what makes for a collective moral agent and how a collective responsibility can be distributed among individuals of the collective. What are some of the necessary conditions for collective moral agency? Must the collective show some structured deliberative capacity? Must it be a collective whose individuals share national ties or other bonds of solidarity? Or must the individuals of the collective be enjoined via certain common interests? And if there is indeed a collective responsibility, what is the right way of parceling this responsibility out among individuals? There is also another problem for PPP conceived as a fault-based principle. In order to hold someone morally at fault, it is not always sufficient to show that she was a significant part of the causal chain of events that led to the bad outcome. In addition, we would normally need to show that she had acted wrongly or was at least morally negligent. The problem with PPP is that, since knowledge of the damage of greenhouse gas emissions became part of mainstream science and general knowledge only relatively recently (some might say only as recently as the 1980s but certainly not before the 1950s), early polluters cannot really be reasonably held to account. We can’t hold them morally culpable since they genuinely lacked the information. Genuine and reasonable ignorance can exculpate an agent (see Guerrero 2007). The Swedish scientist Svante Arrhenius, for example, may have had the insight to notice and establish the causal connection between CO2 accumulation and changes in the Earth’s temperature back in 1895 (Weart 2008b, pp. 5–8). But we shouldn’t hold other scientists, much less the ordinary industrialists and members of the British society, to the same standard. Thus, if the problem of intergenerational unfairness is that it seems unfair to make present generations pay for injustice of past generations, the unfairness in this case is that it is unfair to even pin any wrongdoing on previous generations. In response to this challenge of excusable ignorance, perhaps PPP can be recast explicitly as a no-fault-based principle. That is, a duty of reparative justice need not be based necessarily on culpable wrongdoing. In many instances, we don’t find it counter-intuitive to make people pay for damages even when they are truly accidentally brought about through genuine ignorance. My prior lack of knowledge that the fish I had released into our natural pond was an invasive species does not mean that I don’t have to accept the special trouble of fixing the problem. The fact that one engaged in an activity once thought to be harmless but is now known to have harmful side effects does not make it inappropriate for one to bear the cost, or at least a lion’s share of the cost, of repairing the damage. It is not implausible, in some

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cases, that we hold a person liable for damages even if she was not culpable because of her lack of knowledge. The above are some of the main considerations for and against PPP, and an indication of some of the difficult questions that PPP raises. But a general concern with PPP is that it is too reductive with respect to justice. Yes, we have the duty of justice to make amends if we wrong someone; but that’s not all the duties of justice we have. We can have responsibilities to respond to injustices, to prevent unavoidable harms against others and so on, even when we ourselves played no causal role in affect the injustices or the harms. The past is relevant but not all that is relevant. But before we move away from PPP, it is worth exploring an alternative principle in the vicinity. On this new principle, an agent’s causal relationship to the harmful state of affairs is still the relevant factor. But here, it is not because the agent has caused the harm, but that the agent is benefiting from the situation. Indeed, it might be that for some readers, if PPP has any appeal for them, it is because the people responsible for polluting are also the ones benefitting or have benefitted from the polluting activities. The idea here is that if one gains from a harmful arrangement, then one has the special burden of mitigating the harms to others. This is the “beneficiary pays principle” to which we turn next.

THE BENEFICIARY PAYS PRINCIPLE The beneficiary pays principle (BPP) holds that the larger the share of one’s benefit from global warming activities, the larger the share of one’s responsibility to bear the costs of these activities. Thus, one’s burden of climate justice is directly related to one’s gain from the causes of climate change. On one possible application of this principle, the parties that have historically benefitted most cumulatively from emissions have the greatest responsibility to mitigate climate change. But as a historical principle in this respect, BPP faces parallel problems with PPP. Who are the historical beneficiaries? Should present actors pay if it was only their ancestors who benefitted most? And what is the right measure of benefits? Is it a country’s GDP? Is it that combined with other factors of human development like a clean environment? But BPP can be conceived non-historically and in this way escape the above historical questions. That is, whatever has happened in the past, there are parties at present who are continuing to benefit from the emissions activities of the past and it is the fact of their status as current beneficiaries that they are being asked to pay. For example, one might say that the past polluting activities in Britain gave its economy a significant head start that continues to benefit and advantage present-day Britons. It is this fact of current benefit (and not some reference to total historical benefits) that puts the weight of responsibility on their society. So, unlike PPP, there is no issue here of unfairly passing the burden of repair from the guilty party to the innocent; and there is no issue here of unfairly pinning moral wrongdoing on an actor who simply lacked the knowledge.

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But, even so, there is the issue of how we should define and measure benefits. BPP will have to specify what it means for a country to benefit from emissions activities, and this question is less straightforward than it might seem. For instance, is a country benefitting from such activities if it gains economically but loses out in terms of breathable air and clean environment for its citizens? Moreover, how direct must the benefits from emission production be in order to count as a relevant benefit? Has a country like Switzerland benefitted from emissions activities for the purpose of BPP if, let’s say for the sake of discussion, its economic advantages are the result of managing the finances of people who have polluted? These are questions of specifying what the relevant benefits are. Even if we are able to agree on a definition, there is still the further question of how we can measure and compare benefits. Questions for a position are not fatal objections. They simply point out difficult challenges that a proposal must overcome if it is to have traction. There is also the normative matter of what gives BPP its appeal. What is the reasoning behind this principle? Why does the fact of my benefiting from some state of affairs gives me a special duty? What if the benefits I enjoy are involuntary in that I never asked for them but also cannot avoid enjoying them. Consider for example the pleasures a person actually gets from her neighborhood beautification efforts. She just can’t help it but must see and smell the flowers with immense satisfaction in her daily routine. But she never asked for this enjoyment and would willing forego it if she could. So is she under some obligation to contribute to the communal effort simply because she is a beneficiary even if involuntarily so? These are challenging moral philosophical problems about benefits and responsibilities; but BPP in the context of climate change is not analogous to the standard highly stylized philosophical examples. First, unlike the sanitized beautification case, the benefits at issue under BPP are benefits that accrue from harmful activities. And if people have a right to a habitable planet, then these harms are also injustices. If it is mysterious why the mere fact of my benefiting from an arrangement gives me a special obligation, it is less mysterious why my benefitting from a wrong gives me a special obligation to correct or mitigate the wrong. It doesn’t matter if I weren’t directly responsible for inflicting the injury against other; normally it is enough that I am gaining from an injustice. If a burglar for some reason tossed me some jewelry on his way out from a home he had just ransacked, that I was not directly part of the theft does not preclude my returning the stolen goods. But what if the benefits were involuntary and unavoidable, like in the neighborhood beautification case? Here, again, BPP in the climate context is different from this imaginary scenario. In the latter, the benefits though unasked for cannot possibly be given up or avoided. But not so with BPP. There is a direct way of returning the benefits one enjoys (voluntarily or not) that are due to activities that have contributed to climate change: surrender the economic advantages, and this can be done by taking on a larger emissions reduction burden. We might think perhaps that what really animates BPP is not merely the idea that they who benefit must pay, but that they who benefit from an injustice must pay. That is, it is the benefitting from an injustice or some harmful arrangement that is normatively crucial. After all, we don’t ordinarily begrudge people the benefits that

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they have earned fairly and squarely. What excites our sense of indignation is when someone gains at the unjust expense of others. Thus unpacked in this way, BPP becomes a principle of what we owe to others as a matter of justice. Justice can require that we don’t gain advantages at the expense of others’ rightful entitlements. But justice can also require that we take steps to correct background injustices quite independently of whether we are in fact benefitting from the arrangement or not. We turn next to the principle that climate justice requires those who are most able to pick up the lion’s share of the burden of emissions reduction.

THE ABILITY TO PAY PRINCIPLE Ultimately, both PPP and BPP are attempts to assign greater emissions burdens to rich countries and a impose laxer restriction on developing economies for the sake of economic development. These principles can try to do this because richer industrialized countries have historically emitted more greenhouse gases (PPP), or they have on the whole benefitted more (BPP). We have seen arguments for and against these approaches above, and some of the philosophical questions that must be addressed to resolve the issues (see Moellendorf 2014b, pp. 163–173). A third alternative assigns emissions burdens based on countries’ ability to take on the economic opportunity costs of reducing emissions. This principle, known as the ability to pay principle (ATP), directly targets richer countries without appealing to claims about past fault or present benefits. The fact that richer countries have historically emitted more CO2 and/or benefitted more from the emitting activities is, normatively speaking, only morally coincidental and irrelevant. What matters from the point of view of fair distribution of the burden of justice is the fact of an actor’s capacity or ability. What underlying moral principle can justify placing greater responsibility on the more able? One moral theory that could do this is utilitarianism (see Chapter 2). If the ultimate moral objective is to maximize overall global utility or well-being, then it is probable that this would require richer countries to reduce emissions substantially while permitting poorer countries to emit more in order to take themselves out of poverty.10 Another approach, that is non-consequentialist, takes it that justice requires prioritizing the situation of the worst off. Recall John Rawls’s idea that a cooperative social order ought to be arranged such that resulting economic and social inequalities are to the best advantage of the worst-off class (see Chapter 3). On this approach, then, better-positioned actors ought to take on the greater share of the responsibility of global justice. The worst off are prioritized not because this is how overall good is to be best achieved, but because this is something that can be mutually agreed on as reasonable from behind a veil of ignorance. As we saw, there is considerable debate whether the global order is a cooperative order of the relevant kind that could ground this Rawlsian idea of prioritizing the

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worst off. But if we take it that climate change requires international cooperation (as expressed by the international framework), then this creates the cooperative scheme under which the development and subsistence needs of poorer countries will be given consideration. Some commentators and world leaders supplement ATP with principles like PPP. This is because the countries that are most able to contribute to climate change mitigation tend also to be those who have polluted the most historically, and so backing up ATP with PPP provides additional impetus for assigning greater responsibility to the most able actors. This is one possible way of interpreting the position illustrated by the Indian Minister’s remarks in the Paris Conference. Rich countries have the duty of justice to do more in response to climate change because they are better positioned to; moreover, it is also rich countries that have, to a large extent, brought on the problem in the first place. But, even so, the basic justifying principle for the asymmetrical allocation of climatic responsibilities is the fact of the varying abilities of countries to respond. ATP is more broadly egalitarian than the equal per capita approach (EPC) in spite of its asymmetrical character. It is more broadly egalitarian in that it differentiates countries’ responsibilities of climate justice against their economic standing and capacity. Unlike EPC, it does not narrowly focus on emissions reduction as if that were the sole concern of global justice. In contrast, it adopts a wider view of what human development consists in, taking into consideration environmental as well as economic factors. Accordingly, distributive justice has a broader currency (or equalisandum) and emissions rights are just one part of it. Thus, equality might mean that a country at a lower level of economic development should be entitled to a higher emissions cap. This is not the same as giving countries an equal per capita share, but it is more egalitarian other things considered. Indeed, as noted at the start of this chapter, even with respect to climate change justice alone, the burden of emissions reduction must be adjusted against a country’s adaptation burdens. These have to be taken into consideration when we are working out the totality of a country’s climatic responsibilities. Adaptation costs are among the burdens of climate change that are a common responsibility and that have to be shared fairly by all countries. For instance, a country that has to bear the brunt of climate change will incur immediate adaptive costs that should be added to the opportunity costs of its climatic justice duties. Thus, all things considered, a country’s emissions entitlements should be adjusted against the “price” it is already paying as a result of climate change. For the above reasons ATP is more fundamentally egalitarian than EPC in that it understands equality not in the simple terms of giving the relevant parties an exactly equal share of goods (or burdens) but understands that equal distribution needs to be adjusted against the different needs, circumstances and entitlements of the different parties. (One way the distinction between true equality in distribution versus strict equal allocation is expressed is in terms of “equity” versus “equality”. On this terminology, ATP goes for equity, whereas EPC [mistakenly] goes for equality.)

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To sum, ATP need not tussle with the difficult questions of historical injustice and how to make actors pay for it, nor does it need to derive the asymmetrical allocation of burdens from some story about how certain agents have benefitted more than others. It cuts to the chase, so to speak, and directly targets the richer countries of the world. But as noted above, it faces its own philosophical challenge of explaining why being better off entails greater responsibility. It requires a substantive theory of justice or morality that can explain and justify why the better off have stronger obligations of justice than the less advantaged. The success of ATP in the end will turn on the success of some of the arguments for global distributive justice discussed in earlier chapters.

OTHER CHALLENGES OF CLIMATE CHANGE JUSTICE To end this chapter, let us note that climate change justice raises other knotty philosophical problems of justice besides that of the fair distribution of emissions quotas. To mention just one, it also calls into play the problem of intergenerational justice. Curbing global warming is ultimately a responsibility we owe to future generations. But what exactly can people in the present owe to people in future generations? How do we evaluate competing interests across generations? In particular, how do we weigh the interests or needs of future people (say the need for a sustainable environment) with the interests or needs of present individual (say an interest in economic progress)? Economists have introduced the concept of a “social discount rate” in an attempt to allow for some comparison of present and future interests. The social discount rate is the rate at which future interests or needs are discounted against present interests and needs. There is the question then of the rate at which, if any, we should discount the interest of future agents. Still, the above discussion takes it for granted, reasonably, that whatever discount rate we might settle on, the interests of future persons are not to be discounted entirely (Moellendorf 2014b, Chapter 4). There is also another problem with respect to intergeneration justice, one which connects with a much discussed problem in moral philosophy. The renowned moral philosopher, Derek Parfit, has argued that if we had made different choices in the past, then persons existing today would not have existed. Thus our polluting activities in the past do not wrong any actual persons today for if we hadn’t polluted, they would not have come into existence. Accordingly, there is nothing we do now – continuing to emit greenhouse gases for example – that can count as a wrong against some particular future person. If we make different choices and curb our emissions, then individuals who will otherwise come into existence will not exist. This is the famous “non-identity” problem. It is important, however, to note that Parfit’s point is not to disprove that we have responsibility with respect to the future. That is, Parfit will not claim that because of the non-identity problem, people here and now have no moral duties with respect to the future. His concern, rather, is a philosophical one of how we should understand morality. Impersonal approaches to morality that hold that the right action is that which promotes a certain impersonal state of affairs, such as maximizing happiness in the world, will not be troubled by the non-identity problem. But

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moral theories that understand the rightness or wrongness of an action or a policy in terms of how it affects persons, in terms of what we owe to other persons – what Parfit (1984) calls the “person-affecting view of value” – will run into the non-identity problem. Thus, those who defend rights-based approaches to global justice and climate change will have to address this well-known problem in moral philosophy.

SUMMARY Climate change justice brings to center stage the tension between what we owe to each other at present and what we in the present owe to future generations. It also pits the right of economic development against the duty to reduce emissions to mitigate climate change. The principle of “Common but Differentiated Responsibility” reflects the view that the burdens of responding to climate change, while a common responsibility of all countries, should be asymmetrically distributed among countries given their different histories and background economic conditions. We examined four principles for assigning the duties of climatic justice. The first is equal per capita emissions. But this principle seems insufficiently attentive to historical facts and the needs of developing countries. The second principle is the polluter pays principle. While this principle is clearly historical, it encounters certain philosophical issues by transferring responsibility for past actions to the present. The beneficiary pays principle faces similar problems. But even if seen as a principle concerned only with the present (with present benefits), it seems to be using “benefits” as a proxy for advantage or ability. We turned finally to the ability to pay principle which pins the greater responsibility on countries that are most able to withstand the costs of emissions reduction. Though able countries may also be countries that have polluted most historically and/or countries which have benefitted historically and presently from polluting productive activities, this association is merely coincidental. The relevant normative fact is that of ability. But the ability to pay principle must in turn rest on some substantive theory of justice to explain why the allocation of the duties of justice must prioritize the needs of the worst-off party. The aim of this chapter, as with the others, is not that of resolving a very complicated debate. Rather, its goal is to identify and clarify the main principles of emissions allocation in the literature, and to note the additional questions and philosophical challenges that each introduces.

STUDY QUESTIONS 1 The principle of equal per capita emissions seems at first glance to be thoroughly egalitarian. But some commentators believe that it unfairly disadvantages poor countries. Do you agree? 2 Is the emission of CO2 and greenhouse gases during the Industrial Revolution morally blameworthy? Is this relevant for how we are to assign climate justice duties? 3 Can individuals living today be asked to make amends for the wrongdoings of the previous generation?

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4 How might early emissions of greenhouse gases continue to benefit some people? 5 Can one be asked to pay for benefits that one did not ask for? 6 Is it unfair to expect an agent to do more to bring about justice just because she is more able?

NOTES 1 https://blogs.scientificamerican.com/eye-of-the-storm/earth-had-its-secondwarmest-year-in-recorded-history-in-2019/ 2 Progress isn’t linear. Under Donald Trump, the USA withdrew from the Agreement. With his departure, the USA has rejoined the Agreement. 3 https://www.cfr.org/backgrounder/paris-global-climate-change-agreements 4 See http://www.nytimes.com/interactive/projects/cp/climate/2015-paris-climate-talks [accessed 12 Sept. 2016]. 5 See http://www.nytimes.com/2015/12/01/world/europe/obama-climate-conference-cop21.html?_r=0 [accessed 12 Sept. 2016]. 6 See http://data.worldbank.org/indicator/EN.ATM.CO2E.PC [accessed 12 Sept. 2016]. 7 Given that China’s total output of CO2 emissions far outpaces that of the United States (in second place), any climatically sustainable level of equal per capita emissions will most likely hamper economic growth in countries like China and India. 8 See http://www.nytimes.com/2015/12/01/world/europe/obama-climate-conference-cop21.html [accessed 12 Sept. 2016]. 9 For a collection of essays on the problem of reparations across a range of cases, see Miller and Kumar (2007). 10 That this would be so depends in part on how the utilitarian measures the wellbeing or interest of future persons. How much poor countries may emit in the name of development will depend on the rate at which we discount the wellbeing of future persons. I bracket this issue for the moment, but will return to it later.

REFERENCES Simon Caney, “Cosmopolitan Justice, Responsibility and Global Climate Change” (2005). Darrel Moellendorf, The Moral Challenge of Dangerous Climate Change (2014b). Darrel Moellendorf, “Climate Change Justice” (2015b). Henry Shue, “Subsistence Emissions and Luxury Emissions” (1993b). Spencer R. Weart, The Discovery of Global Warming (2008b).

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FURTHER READING For a collective of classic essays, see Henry Shue, Climate Justice (2014). See Byron Williston, The Ethics of Climate Change (2018), for a critical introduction to the topic. For a recent collection of advanced papers on different problems of justice and climate change, see Jeremy Moss (2015). The “Introduction” by Moss is an excellent critical survey of the different problems of justice and personal responsibility that climate change introduces. A useful anthology of seminal papers is Stephen Gardiner and Simon Caney (eds.) (2010). For some discussions on reparations for international injustices, see Daniel Butt (2009) and Göran Collste (2015). For discussion on the social discount rate for the future and climate change justice, see Simon Caney (2009). For a commentary on the non-identity problem see Roberts (2015).

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global democracy: cosmopolitan versus international It is commonly observed that increasing globalization is accompanied by a global democratic deficit, that is, “a lack of input and participation, and a correlate lack of accountability, concerning decisions by intergovernmental and other transnational organizations that increasingly affect people’s lives” (Gould 2004b, p. 201). In a response to this democratic deficit, some theorists have argued that we need to disconnect democracy from its traditional state-centered locus, and to reconceive it as a trans-state and cosmopolitan ideal. Others believe that democracy is inherently a bounded ideal. Specifically, it is an ideal intrinsically confined to the state. In their view, the response to the democratic deficit is not to dislocate democracy from its traditional locus, as the cosmopolitan democrats would have it, but to strengthen the existing state-centric sites and practices of democracy. In this chapter, we outline the main contours of cosmopolitan democracy and one line of objection against it. The debate between cosmopolitan democracy and its alternative reiterates a fundamental controversy within democratic theory. Democracy is rule by the people. But what constitutes the people, or the demos? Which group of individuals is entitled to democratically participate in decision-making? The debate on global democracy is, at bottom, a debate about the plausibility and reality of a global demos.

THE DEMOCRATIC DEFICIT AND COSMOPOLITAN DEMOCRACY Cosmopolitan democracy is proposed as a response to the problem of global democratic deficit. The state-centric account of democracy, cosmopolitan democrats point out, is increasingly outmoded in an era of increasing globalization in which state borders and membership are becoming less and less central with respect to where DOI: 10.4324/9780367821531-11

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decisions are made, on the one side, and, on the other, how and where they impact people. Many domestic economic and social decisions and policies have global reach and effect. For example, environmental regulations, or the lack thereof, affect not just the country where these regulations are enacted or not enacted, but also neighboring countries, if not the rest of the world. Even when decisions with profound impact on persons are made by international institutions, such as the World Bank or the International Monetary Fund, there is an absence of democratic input by those individuals who will be most affected. As a major proponent of cosmopolitan democracy, David Held, puts it, “the idea of a democratic order can no longer be simply defended as an idea suitable to a particular closed political community or state” (Held 2000, p. 19; also Held 2010). Thus, Held and others like Daniele Archibugi et al. (2000) propose, as an alternative to the traditional state-centric view of democracy, the ideal of cosmopolitan democracy. As transnational and governmental decisions and policies with global consequences become more pervasive, the bounds of individual democratic engagement cannot remain confined to their respective states. The idea that democracy is essentially a state-based practice and concept has to be replaced by an unbounded conception of democracy in order to face the new realities and challenges of a globalized world order. Held therefore recommends that [a]gainst this background [of globalization], democracy must be thought of as a “double-sided process” … [meaning] not just the deepening of democracy within a national community, but also the extension of democratic processes across territorial borders. Democracy for the new millennium must involve cosmopolitan citizens able to gain access to, and mediate between, and render accountable, the social, economic and political processes and flows which cut across and transform their traditional community boundaries. 2000, p. 30 Instead of continuing to regard democracy as primarily an ideal that must be anchored in the idea of a nation, cosmopolitan democrats propose that democracy be seen as primarily a transnational ideal that is directly applicable to individuals of the world taken as a single social scheme. Thus, basic to the idea of cosmopolitan democracy is that there ought to be overlapping transnational institutions and associations in which individuals ought to have a participatory or deliberative democratic role. People are not just democratic citizens of their state, but they are also democratic members of the global community through their membership and participation in various different associations and activities within and without their own countries. Some cosmopolitans propose the formation of a world parliament of a sort, in the form of democratically elected People’s Assembly, a world assembly of individuals elected directly by individuals independently of their nationalities, to complement the United Nations General Assembly in which countries rather than individuals as such are represented (Archibugi et al. 1998).

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Although cosmopolitan democrats need not go all the way and seek to replace nation states with a world state, they advocate the creation of overlapping transnational and regional institutions that cut across national boundaries and in which individuals can have a direct participatory democratic role. Individuals are not merely democratic agents within their own countries, but are democratic agents in the world at large. They are to be empowered to have a voice in global decision-making through their participation in various transnational associations and institutions. In other words, individuals will assume certain democratic citizenship functions at the global level that are traditionally state-confined, such as electing representatives to world-governing bodies. Held writes that “Democracy for the new millennium must involve cosmopolitan citizens able to gain access to, and mediate between, and render accountable, the social, economic and political processes and flows which cut across and transform their traditional community boundaries” (Held 2000, p. 30; my stress). Undergirding the ideal of cosmopolitan democracy is the principle of democratic membership called the “all affected principle”. This principle, in its basic form, says that the relevant set of individuals who should have the right of democratic participation in the collective decision-making is anyone who would be affected by these decisions. The advent of new technologies, increased mobility of goods and people, the increasing influence of international institutions and the increasing impact of international practices on persons’ lives, make it the case that individuals are increasingly being affected by decisions made outside their own state. In the face of this new global reality, the all affected principle thus entails the extension of individuals’ democratic rights beyond the confines of the state. Extending democracy beyond the bounded state in any significant sense, however, is not without controversy. We will return to this matter below. But first, let us consider the related concept of “cosmopolitan citizenship”.

COSMOPOLITAN CITIZENSHIP The concept of cosmopolitan citizenship introduced by cosmopolitan democrats needs some clarification. It could give the impression that what cosmopolitan democrats are yearning for is a world democratic state in which persons are cosmopolitan citizens in the legal-political sense, as subjects of a literal global government. But, in fact, few cosmopolitan democrats call for an actual world state and an accompanying literal world citizenship. Indeed, they are normally appreciative of the standard concerns with regard to world government. For instance, Immanuel Kant, his cosmopolitan credentials notwithstanding, is skeptical of a world state.1 He argues in his essay “Perpetual Peace” that a literal world state will be hard to achieve and, even if achievable, hard to maintain given the vast expanse of the globe and the challenges of human diversity (Kant). And if, in spite of the odds, such a state is actually realized, it is realizable and sustainable only through some kind of global tyranny. What Kant is saying is as follows: given the natural conditions of humans and the world – e.g., the facts of human social diversity and geographical barriers – a world state does not seem

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feasible. The physical world is just too vast and the human population is too diverse for a constitutional world state to get established, much less to be able to govern well. If, however, contrary to expectations, we somehow do establish a world government and sustain it, this can only be due to dictatorial force for the reasons stated above. That is, because of the factual limitations about humanity and the world, a world government, if it is to come about could only be in the form of a world empire, as a global imperium. In short, world statism is either unfeasible or undesirable. World statism has some gallant defenders (and we will discuss this later on).2 But this is an outlier position among cosmopolitan democrats. Few cosmopolitans actually defend a literal world state and a world citizenship conceived as citizenship in the ordinary legal and political sense and defined in terms of a common political relationship. Most of them, like Held, refrain from affirming an actual world state. On the contrary, they quite explicitly declare that their understanding of cosmopolitan democracy does not entail a world state as we ordinarily understand “state”. For Held, what cosmopolitan democracy requires primarily are trans-national institutions and organizations that transcend and cut across the boundaries of states. To put it simply, Held’s cosmopolitan democracy is a call for more democratic world governance, not a world government. Its attendant notion of cosmopolitan citizenship, then, is not citizenship in the standard legal-political sense, connoting membership in a political association and lawful subjection to its coercive powers. In general, when cosmopolitans, like Martha Nussbaum, make the case for world citizenship, they are not arguing for the extension of our ordinary conception of citizenship to a world polity as such. In Nussbaum’s case, she is urging that we strive to “make all human beings part of our community of dialogue and concern, base our political deliberations on interlocking commonality, and give the circle that defines our humanity special attention and respect” (Nussbaum 1996, p. 9). Nussbaum’s cosmopolitan citizenship is a moral aspiration rather than a legal-political one. The “world citizenship” that most cosmopolitans aspire to is a moral rather than a legal ideal. Cosmopolitans for the most part are not bent on creating a world state as such, but want the creation of a common moral world and the recognition of the membership of all humans in this moral world. Cosmopolitans, in short, intend their call for world citizens to be understood metaphorically, rather than literally.

DEMOCRACY AS A STATE-CENTRIC IDEAL Although the cosmopolitan democrat need not be advocating for world statism and cosmopolitan citizenship in the legal-political sense, she nonetheless imagines the possibility of democratic engagement among individuals outside the context of the state. Some critics object to this unmooring of democracy and individual democratic responsibility from the locale of the state. According to this line of objection, democracy is a necessarily state-bounded concept. Democratic engagement and accountability are possible and realizable only among individuals of the same state. Perhaps the most vivid version of this objection is what I will call, for convenience, the nationalist objection. This is the argument that democratic deliberation is achievable

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only among members of a common political culture. Unlike the cosmopolitan ideal, which defines the demos in terms of affectedness, the nationalist view of democracy understands the demos in terms of political membership. Will Kymlicka writes that “democratic politics is politics in the vernacular” (2001, p. 213). Meaningful democratic deliberation is possible only among individuals who share a common language, he argues. One reason for this is that ordinary people feel “comfortable debating political issues in their own tongue”, and that, as a general rule, only elites can acquire fluency in more than one language. So to require people to deliberate in a language that is foreign to them is to defend a form of elitism at best, and at worst their exclusion from deliberative politics – a violation of the democratic ideal either way. As well, “political communication has a large ritualistic component” that a mere technical competence in a language may not be sensitive to (ibid., p. 213). For example, Yael Tamir notes how the Israeli parliament, the Knesset, follows after the “Great Knesset”, which was a central religious and political institution during the period of the Second Temple (Tamir 1995, p. 148). The Knesset’s proceedings and procedures thus reflect a particular culture and background history that a merely technical understanding of Hebrew may not suffice to render comprehensible and familiar. Thus, Kymlicka concludes that “the more political debate is conducted in the vernacular, the more participatory it will be” (2001, p. 214). In addition to the common language that shared nationality provides, another crucial role nationality plays in servicing democratic politics is that it provides a sense of solidarity and unity that is necessary for generating the requisite level of mutual respect and trust among individuals. Democracy requires individuals to respect the reasonable views of their fellow citizens, even if they are in deep disagreement with each other, and conversely that they are to forward arguments and views that each can reasonably expect others to endorse. It also requires a certain degree of trust so that the losers in a given democratic process can be motivated to honor the result, because they are confident that, should results be in their favor next time, their opponents would likewise honor these results (Kymlicka 2001b, p. 226; also D. Miller 1999b, p. 90). Fellow nationals are in general not as intimate with each other as, say, friends or kin are. But fellow feelings, nationalists argue, need not be restricted only to people who are closely related to one another. Conationals see themselves to be part of a collective and common past and with a shared future, and even if they are not actually acquainted with each other, “in the minds of each lives the image of their communion” (Anderson 1993, p. 6). It is for this reason that Benedict Anderson famously refers to the nation as “an imagined community,” meaning by this not that the nation is a fictitious association that is unworthy of people’s allegiances, but that it is a significant allegiance-generating association that is premised on a people’s image or collective consciousness of its historic and communal distinctness. Thus David Miller writes that democratic politics “are likely to function most effectively when they embrace just a single national community” (1999, p. 90). This is because the virtues of mutual trust and respect, moderation and self-restraint are

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crucial for a functioning democratic political community; and common nationality provides the “cement” for engendering and nurturing these virtues. In sum, nationalist theorists point out that nationhood provides the solidarity and common language necessary for democratic politics. Yet, they retort, “the cosmopolitan governance proposed by Held is for the most part silent on” this crucial point (Kymlicka 2001b, p. 239). What would serve as the basis of solidarity and common understanding at the global level among people of diverse nationalities? If individuals are to be directly represented in global decision-making irrespective of nationality, it is not clear if the linguistic diversity can be overcome, and if the diversity in worldviews and affinities can properly support a democratic deliberative order that is based on mutual trust and respect across national lines. If we actually do establish, say, a directly elected world parliament, how likely would it be for, say, a Canadian to seriously consider voting for, and to do so in an informed manner, an Indonesian candidate given the linguistic and cultural barriers between them? Indeed, as some commentators point out, the European experience has shown this to be quite unlikely. In spite of the success of the European Union (EU) in bringing together democratic nations under a single formal and legal organization, the creation of a unified European demos remains elusive (p. 211). Indeed, the diversity of national identification remains in spite of economic and monetary integration at the level of Europe. There is also the problem of fostering and securing a global civil society that can underpin a functioning democracy of individuals in the global arena. Democrats take as one important precondition for a flourishing democracy the presence of a flourishing civil society. Yet it is not clear how a global civil society could be engendered, according to the nationalist democrats. Richard Falk holds out hope, cautiously, that a global civil society may emerge as a result of globalization, in that “as the global village becomes more an experienced, daily reality” (Falk 2000, p. 176), individuals can come to see themselves as members of a shared community of fate. This optimism presupposes that the sense of solidarity and common sympathies and fellow-feelings that are the preconditions of civil society can be engendered globally because of people’s common experiences and realities as a result of increased globalization. Yet shared experience and reality alone may not be sufficient. A prior sense of identity may be necessary before individuals can come to appreciate and perceive certain experiences and realities as shared. Why, for example, would Americans attempt to understand the effects of globalization and to share in their worldview? The felt impact of free trade and economic liberalization for Americans and the Chinese workers are quite different; unless there is first a prior sense of affinity and mutual feeling between the two peoples, experiences need not be seen as shared and held in common. One might propose that shared values and causes could provide the glue to bind individuals from different nations together, thus creating the global civil society needed to ground cosmopolitan democracy. Held points to the “new voices” motivated by shared principles in events such as the Rio Conference and the Beijing Conference on Women’s Rights as hopeful signs of strengthening global ties and the founding of a global civil society. While Held acknowledges that these attempts to

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create “new forms of public life and new ways of debating regional and global issues” are still very nascent, and so it is too early to say whether these attempts to foster a global civil society will eventually succeed, he nonetheless thinks that “they point in the direction” of such possibilities (2000, p. 29). On the other hand, nationalists hesitate to take transnational activism motivated by shared goals and interests as evidence of emerging transnational democratic deliberation. The former kind of coalition unravels when goals and interests diverge; democratic associations, on the other hand, ought to be able to withstand such value disagreements. Indeed, democratic associations presuppose divergent goals among their members, and hence the need for democratic deliberation to fairly and reasonably adjudicate divergent claims. The ties that bind a democratic order together cannot be secured by shared interests or principles for these are not robust and permanent enough to generate the kinds of shared sympathies, and mutual respect and trust, necessary for actual deliberative democracy (Kymlicka 2001b, p. 325). The nationalists do not deny that there is a global democratic deficit that needs fixing. They do not oppose the idea of greater global democracy as such. What they are skeptical of is that global democracy can be achieved through the direct democratic participation of individuals dislocated from local and national communities. Instead of supplanting and diluting national and local democratic relations, nationalists would call for the strengthening of the traditional sites of democracy at the local and national levels, and better international democratic institutions wherein representatives of democracies can engage in democratic decision-making with other national representatives. In short, global democracy is to be achieved by improving democratic relations between individuals at the national level and improving democratic relations between national communities at the global level. Global democracy will take the form then literally of an international democracy instead of a cosmopolitan democracy. Indeed, the nationalist or statist democrats would argue that it is better to address the global democratic deficit not by weakening or transplanting local (state-centered) democratic ties but by in fact strengthening and improving these local democratic relations. As Amy Gutmann writes, “Democratic citizens have institutional means at their disposal that solitary individuals, or citizens of the world only, do not” (Gutmann 1996, p. 71). They are in a real position to pressure their representative to address the defects in global policy making and to represent their interests in this way without the need for their actual participation in global forums. Thus, rather than seeing the state system and cosmopolitan goals as mutually at odds, cosmopolitans should try to reconceive states as entities that can be made more responsive and conducive to cosmopolitan ends. Instead of making a cosmopolitan state, cosmopolitans can try to make states “more cosmopolitan” (Brown 2011, p. 65). This last point highlights the strategic role of nationalizing democracy for the end of global democracy. Unlike the cosmopolitan democratic approach, which will call for the creation of new forms of governance, the nationalist approach calls on democrats to improve on existing global institutions and structures and, importantly, to strengthen democratic national governments.

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Defenders of cosmopolitan democracy, in reply, have questioned the claims of the nationalists. They argue that, contra the nationalist thesis, deliberative democratic associations larger than the nation, and that cut across national and other boundaries, can be formed, fostered and sustained, the lack of shared nationality and language notwithstanding (e.g., Weinstock 2001). Indeed, they may point out that nationalists are guilty of a certain double standard by holding cosmopolitans to a higher standard of deliberative ideal than is expected of deliberative democrats in the national context. After all, the ideal of deliberation within multicultural countries faces the same issues of linguistic and cultural diversity that nationalists say cosmopolitans must surmount; also deliberative democracy in modern nation states, which are certainly not intimate associations, does not require direct individual involvement in all matters, but that individuals may be represented indirectly at different levels through different constituencies and other sub-national associations. So cosmopolitans are not alone in being guilty of assuming a higher degree of direct individual involvement than is realistically possible, they would note. Perhaps the most challenging of the nationalist objections against the cosmopolitan concerns the basis of solidarity and affinity for democratic politics. Yet, as some cosmopolitans have countered, it is important not to underestimate the malleability of people’s sense of solidarity and fellow-feeling with others. Indeed, if nationalism is properly seen as a morally expansionist project, that is, a project that seeks to compel people to overcome their parochial ties of kinship and tribalism in order to include strangers (i.e., their conationals) within their arc of moral concern, rather than as a morally limiting project, then there is no immediate reason to think that this expansion of human moral motivation cannot be developed beyond the bounds of the nation. Carol Gould (2014) has argued for the formation of global solidarity that is necessary for interactive global democracy. We have looked at the possibility of globalizing democracy in a cosmopolitan spirit in a world of independent states. Indeed, I noted that most cosmopolitans are reluctant to tie global justice and global democracy to the idea of a world government. But some cosmopolitans think that this shunning of world statism is without basis, that cosmopolitans should in fact embrace a world government. We will end this chapter with a quick acknowledgement of the case for world statism.

WORLD GOVERNMENT? Some cosmopolitans make the case for world government and thus would conceive of cosmopolitan citizenship not in a metaphorical way but literally, as a political-institutional ideal. They have made the following points. First, the ideals that cosmopolitans defend (e.g., global egalitarianism) cannot be realized without the “accountable” global institutional integration that world statism and world citizenship will supply (e.g. Cabrera 2004; Ulas 2016). As for the worries that a cosmopolitan state would be undesirable, they point out that this an unstable “compromise” of cosmopolitan ideals against political realities. Instead of shying away from a world state, they suggest that cosmopolitans should look at what is it about the world that

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would make the world state undesirable. Is it because of human failings? If so, these failures should be addressed and not be treated as fixed points that mark the limits of what is acceptable. As for whether such an order is within human reach, some cosmopolitans suggest that yes it is, and that in fact the foundations for a world state are already established (e.g., Goodin 2013). In short, cosmopolitan statists say that a world state is feasible, necessary and not undesirable. These are important points and fitting matters of continuing debate. I will note three questions here. First, on the feasibility point, have we really laid the groundworks for a world government? Is a world government, or at least its foundations, already here? Robert Goodin suggests that the current world system looks very much like the pre-Constitution United States, and so perhaps we are on our way to a more fully federated world political order. However, it is perhaps important not to overstate the similarities between the early USA and the present world order. First, the world is lot more diverse – linguistically, culturally and politically – than America at its founding. The fits and starts of the European Union experiment will remind us of the challenges that deep national diversity pose for a formation of a common polity. Moreover, and this is important reminder of the Kantian point, the eventual fruition of a federated United States was made possible through not an insignificant amount of tyranny (an obvious example here being the atrocities against Indigenous peoples). As for the necessity of a world state for the sake of cosmopolitan goals, this will depend on the content of the cosmopolitan principles being proposed. A fullfledged cosmopolitan egalitarianism which seeks to duplicate domestic justice in all its form in the world at large will likely need a common coercive global authority. But must cosmopolitanism, even cosmopolitan egalitarianism, have this ambition? (See Chapter 3.) Third, with respect to the desirability of world statism, we can ask: is the typical cosmopolitan hesitation regarding world statism a capitulation to political realism? Or is it in fact a proper acknowledgement of the limits of human social organization? Given what we know about cultural diversity, linguistic limitations, the conditions for reasoned and informed deliberation, can the arena of democratic citizenship really be without bounds? J.J. Rousseau exaggerates when he writes that democracy can operate only in small states where people can easily assemble and are intimate with each other, and whose customs are relatively homogenous (1762, BK III, Chapter 3). But can the democratic ethos extend to the whole world? It is true that idealism with respect to cosmopolitanism must not too quickly surrender to realist concerns, and let facts as they exist define what is morally possible. But cosmopolitan idealism must also avoid utopian thinking, and to ensure this, certain facts of human nature, including factors like the limits of what is morally reasonable and feasible, must be acknowledged. Idealism, in this regard, claims the middle ground between realism on the one side, and utopianism on the other. Proponents of world statism invite us to further clarify what is ideal and what is wishful utopian thinking. Importantly, they urge us not to too quickly foreclose our options and limit our sense of what might be possible. Perhaps most cosmopolitans avoid talking about world government not because they oppose the idea (unlike the

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nationalists), but because they want to be able to make the case for cosmopolitan justice as an ideal independent of a world government. They are making an argument of the form, that even if there is no world government, we can still take global justice seriously. Their stance towards world statism then is at best agnostic. For these agnostic cosmopolitans, the possibility that a world state is both feasible and desirable need not be an objection.

SUMMARY We began with the question of the feasibility of global democracy. Both sides to the debate agree that there is a global democratic deficit. The cosmopolitan democrat’s solution is to reconceive democracy and disengage it from its traditional locus, which is the state. By liberating democracy from the state, we can then democratically empower citizens globally. The nationalist holds that democracy is inherently statebound. In particular, if what we care about is meaningful deliberative democracy, it is not possible to realize democratic ends without situating the practice of democracy among individuals connected by some nationalist solidarity. The response to the global deficit is to improve democratic politics at home in the state and to provide better deliberative democratic forums for representatives of democratic states to negotiate with one another. Here the solution to global democratic deficit is not cosmopolitan democracy but improved international democracy. The problem of global democracy highlights a basic problem in democratic theory. Democracy is self-rule among a set of individuals. But what is this relevant set? How do we determine the demos? One principle is the principle of all affected. On this principle, anyone who would be affected by the decisions of the collective is a member of the demos. As we saw, this commitment typifies the cosmopolitan democratic ideal. An alternative principle takes the demos to be defined by some criteria of social membership. On the nationalist view, membership in a demos is not determined by the all affected principle but by the fact of shared nationality. The dispute between cosmopolitan democracy and its main critics will engage and further unpack this more basic dispute.

STUDY QUESTIONS 1 Why do some commentators think that there is a global democratic deficit? What are some examples of this deficit? 2 Does the idea of cosmopolitan citizenship require a fundamental reconceptualization of what citizenship means? 3 What is the difference between democratic global government and global governance? 4 Is democratic deliberation necessarily a state-centric ideal, such that there can be no meaningful democratic deliberation among individuals across borders outside the confines of the state?

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5 Why do some nationalists believe that shared nationality provides the social ties that are necessary for democratic relations? Have they exaggerated the significance of shared nationality? 6 What are the prospects for the world as a whole to constitute a single demos? 7 If there is no possibility of a global demos as such, how can we address the global democratic deficit?

NOTES 1 See Pauline Kleingeld (2016) for a critical overview of Kant’s cosmopolitanism; also Garrett W. Brown (2009). 2 See, e.g., Goodin (2013) who argues that the rudiments of world government are already present, and the fear and skepticism of world government as a wholly novel idea is unwarranted.

REFERENCES Carol Gould, “The Global Democratic Deficit and Economic Human Rights”, in Gould (2004b). David Held, “From City-States to a Cosmopolitan Order” (1992b). Will Kymlicka, “Citizenship in an Era of Globalization: Commentary on Held”, in Kymlicka (2001b). David Miller, “Bounded Citizenship” (1999b).

FURTHER READING For an overview of the philosophical problems of democracy, see Robert Talisse, “Democracy” in his Engaging Political Philosophy (2015). For a collection of essays on global democracy, including discussions on its different forms, see Barry Holden’s edited volume (2000). See Carol Gould’s Interactive Democracy (2014) for a discussion on the prospect of global solidarity and global democracy. See Garrett W. Brown (2011) for how states can serve rather than hinder cosmopolitan ends. See Luis Cabrera (2004) for one defense of the world state.

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global health justice Global health raises several challenging questions for global justice. In this survey, I will look at only four questions. First, is there a human right to health? Second, is inequality in global health an injustice? Third, and relatedly, what implications do global injustice more generally have with respect to how we conceptualize global health justice? For example, do we have stronger duties of health justice towards less well-off countries, or is health justice a special case that is independent of more general concerns of justice? Finally, what do we owe to each other globally in a pandemic (for example during the Covid-19 crisis at the time of writing)?

A HUMAN RIGHT TO HEALTH? Sec. 1 in Article 25 of The Universal Declaration of Human Rights states: Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. Also, consider the Constitution of the World Health Organization (WHO) which enshrines “the highest attainable standard of health as a fundamental right of every human being.” But is it useful to talk about a human right to health? Is there any normative advantage to this? To begin, some clarifications are in order. What might a human right to health even mean? If it means that each person as such is to be put in a position so as to actually enjoy some defined basic level of health (e.g., to realize an 83 year life expectancy), and thus any failure on the part of a state to ensure this constitutes a human right violation, this would be too demanding and implausible an understanding of what it means to have a human right to health. People can experience health deficits – natural illnesses – in spite of anyone’s best efforts. Moreover, to DOI: 10.4324/9780367821531-12

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actually realize good health as a matter of obligation can be unreasonably costly and demanding for society if actual health attainment is understood as a matter of right that a society must do all within its powers to realize. What a human right to health most plausibly means is that, adapting Henry Shue’s seminal work on “basic rights”, individuals are to be protected against “standard threats” against good health (Shue 1980). One obvious “standard threat” to health is that of the lack of access to basic health care and lack of access to medication. But standard threats to health include more than just the lack of access to care and treatment. Other standard health threats include the unavailability of clean water, the absence of proper sanitation, having to live amidst pollution and other toxic wastes, dangerous work conditions, and unsafe social or natural environments and the like. A country in which children have to navigate dangerous traffic or traverse torrential rivers just to get to school is one in which health is put at risk. If a human right to health means protection or coverage against such standard threats, then individuals have justified claims against their state (and the international community secondarily) if they do not receive these protections and coverage (Wolff 2013b; Hassoun 2015). In debates in the philosophy of human rights, some writers have argued against privileging the language of rights on the ground that treating rights as the fundamental moral notion misses what is really important in morality, and therefore misconstrues the true value of proper moral relationships. They worry that the legalistic and adversarial character of the language of rights can be counter-productive in the advocation for better access to health. Others also have qualms regarding the controversial nature of a positive right or claim-right which a right to health implies. A claim-right, a right that creates obligations on others to do something (as opposed to merely refrain from interfering), is not something everyone sees eye-to-eye on. Some libertarians, for instance, say that there are only liberty-rights, rights that only impose the negative duty of forbearance on people. For them, there is no positive moral duty to act in order to enable another person in the pursuit of her ends. A rights approach to global health thus risks getting stranded in a philosophical quagmire. For these kinds of reasons, some commentators have proposed that we focus on some other value, such as health capability, rather than a right to health (Prah Ruger 2018b). These are well placed concerns. But perhaps the disagreement is not as deep as it might appear. First, rights are justified moral demands against others. This may sound litigious, and naturally we prefer that people stand in relation to each other not as adversaries but in relations of mutual concern and care. This objection to the supposed legalistic and adversarial character of rights is a replication of a more general debate in moral and political philosophy over the concept of rights. Some philosophers have for this reason proposed that we replace the “ethics of rights” with an “ethics of care” (V. Held 2006). For care-ethicists, morality is not fundamentally about making claims against each other backed by the vocabulary of rights, but is fundamentally about establishing and sustaining caring relations with one another. The ethics of care rightly identifies what a meaningful and valuable relationship among persons ought to look like. But a rights-ethics does not deny this. The

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normative role of rights is to serve as a shield for individuals against abuses. That is, a right can come into play, for example, when care or concern wanes or cannot be counted on. Rights are safeguards, as it were, that are activated in times of moral failure. To say that a citizen has a human right claim against her state for better health provision does not mean that this confrontational view of state–citizen relationship is ideal: it is simply stating that when a state fails in its duty of care, citizens are entitled to raised justified moral claims against it. If this is a reasonable understanding of what an ethics of right is supposed to do – to protect individuals against standard moral failures – then the worry that the idea of a human right to health is too legalistic and adversarial is misplaced, for that is precisely its point: to hold governments and the international society accountable when they fail to treat people with proper care and concern. What about the supposed controversy about claim-rights? To reiterate, the worry here is that framing health justice in terms of a human right will itself be controversial since a human right to health will engage positive rights of some sorts; and yet libertarians for example believe that there are only negative rights. But the controversy surrounding the positive character of human rights is perhaps less evident in practice than in philosophical discourse. There is an “emergent” human rights practice – to recall Charles Beitz – in international political life (Beitz 2009; see Chapter 6), and this emergent practice for all intents and purposes takes it as a given that human rights include positive duties, such as duties to provide basic subsistence. So while libertarians will resist the idea of positive rights, human rights as a global practice already operate on the assumption that there are positive rights. This is not to say that implementation and realization have been a success. It is only to say that the concept of a positive right is already granted in the international practice of human rights, and thus not as contentious – both philosophically and politically – as the objection makes it out to be. Moreover, it is not the case that alternative understandings of the moral imperative to provide health care, such as the concept of capabilities or well-being, are any less controversial than that of human rights. It seems equally controversial – if rights are controversial – to say that people have positive moral duties with respect to the health capabilities of others. It may be uncontroversial that health capability is a moral good, a thing of value to individuals. But just because something is a good or valuable for someone does not immediately put others under a moral obligation to protect her access to it, let alone take steps to enable her. I am not saying that the further argument linking a moral good and some corresponding moral duty cannot be made. The point here is that the idea of health capability does not evade philosophical debate and argumentation any less than the idea of a human right to health. Indeed one might say that the idea of a right to health would be less controversial than the alternatives (capability or well-being) because it is already affirmed in the morality of global politics (as affirmed by the “Universal Declaration of Human Rights” and international health organizations like the WHO). If anything, one might think that the language of human rights can be used to operationalize and enforce the ideal of health capability. As mentioned, there is already an “emergent” human rights practice:

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pegging the ideal of capabilities onto human rights can use human rights as a vehicle for securing and promoting health capabilities. The language of rights carries a moral force that health capability does not, precisely because it provides a justified claim that capabilities per se do not. So rather than seeing human rights and capabilities as opposing approaches, we might see them as complementary, with the language rights providing the normative language with which we promote global health capabilities. In the end, the debate over whether we should speak of a human right to health is less a debate about whether we should talk about a right to health and more whether we should use the concept of a right more generally. As noted above, some ethicists have argued that the language of rights misconstrues our moral relations to each other. Getting more deeply into this debate will take us too far off field. For our purpose, I close this section with the following comment: If the concepts of rights and human rights are philosophically sound generally, then the idea of a right to health is also sound. There is nothing unique about global health justice that renders the concept of right specially inapplicable in this context.

JUST GLOBAL HEALTH: EQUALITY OR SUFFICIENCY? Is health inequality an injustice only when it causes some to fall below some identified threshold of basic health; or is inequality in health outcomes itself a health injustice? To recall earlier remarks (see Chapter 3), by “equality” or “egalitarian”, as these terms are used in conjunction with the ideal of distributive justice, I mean that inequality in the distribution of the relevant distributive good (among the relevant agents) raises a potential question of justice. An egalitarian ideal of just distribution regards an equal distribution of the relevant good (or distribuendum – the thing to be distributed) to be the benchmark from which any deviation must be justified. An egalitarian ideal of justice thus aims to regulate or control inequality in distribution by stipulating that any departure from the default of equal distribution has to be justified by reference to some distributive principle. So, one clarification is that egalitarianism or equality in distribution does not mean that there must be absolute equality in terms of the outcome. An ideal of just distribution is egalitarian if it limits the range and kinds of inequality by reference to some principle. In contrast, a “sufficientarian” approach to distributive justice does not concern itself directly with inequality in distribution. Sufficientarianism holds that a just distribution of the distribuendum is achieved when the distribution is such that the holdings of all relevant agents meet some identified threshold of sufficiency. Sufficientarianism is not necessarily a bare-subsistence conception of justice. Different sufficientarian theories can define the threshold of sufficiency differently – some modestly, others more robustly. There is nothing in the logical structure of sufficientarianism that says the threshold must lie at one point on some subsistence-scale rather than at another. What makes a theory of distribution a sufficientarian one is its form, its pattern, rather than its content. For a sufficientarian, when the threshold is met, any inequality above that threshold is no longer a concern of justice. A robust sufficientarian view, one that has a very demanding idea of what the requirement of

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sufficiency is, is still sufficientarian and not egalitarian in form because it has no direct interest in inequality above its threshold, however demanding that threshold may be. Finally, while sufficientarianism does not take a direct interest in equal distribution, it can have an indirect interest in equality, as in cases when inequality in distribution causes some agents to fall below the sufficiency threshold. But the distribution commitments are motivated not by egalitarian concerns as such but by sufficientarian ones.1 “Egalitarianism” and “sufficientarianism” thus refer to two different views of the basic forms or basic patterns of distributive justice. So, let us consider whether health justice should be sufficientarian or egalitarian in form. This is an interesting question philosophically as well as practically, for how we respond to it will identify what we should be aiming for or aspiring to with respect to global health justice. Take the difference in life expectancy between Norway (82.3 yrs) and Lesotho (54.6 yrs); or Japan vs Norway, with 83.9 years for Japan. Or consider access to health as measured by ratio of medical providers to citizens. Should these inequalities count as problems of health justice?2 Most of us will agree that the vast health inequality between Norway and Lesotho reflects a problem of justice. But when we do, what is the reason for this? If the reason is that some people are so clearly below an acceptable threshold of sufficiency, then we are objecting to an absolute deficit rather than to the relative deficit or inequality per se. The inequality is associated with the absolute deprivation but the inequality as such is not the reason why we think there is a problem of justice. In fact, it is this commitment to a level of sufficiency that accounts for why global health disparities are in the first instance so clearly an injustice. If health is a human right, the problem is not inequality as such in these extreme cases, but a basic violation of people’s right to health. But if we put aside extreme cases where health deprivations amount to a basic human rights violation of some sort (or some deprivation of basic capabilities), do health inequalities still present an issue of justice? Should, say, the inequality in life expectancies between Norway and Hungary (with life expectancy of 76.1 years), or even between Japan and Norway (slight as the difference is), be considered a potential problem of justice? Even if we allow that justice should adjust for voluntary choice and decisions and grant that the differences in health between these countries are the result of (intergenerational) deliberate social choices and policies, it is a matter of mere luck that one is born in a country that has made social intergenerational choices resulting in higher or lower life expectancy for people in the present. If differences in health outcomes are the result of choices by free agents, then these inequalities will not exercise most egalitarians. But if the differences are due to circumstances, including background global injustices in the distribution of resources and other goods that contribute to health capabilities, then egalitarians will find the health inequalities a potential problem of justice. Thus egalitarians can be sensitive to the fact that inequalities in health outcomes can be due to agential choices. What concerns them are those inequalities that cannot be traced to choice; in particular what will be deemed especially problematic will be health inequalities that are due to other kinds of social injustices.

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So if justice ought not to allow persons’ life prospects to be shaped by circumstances outside an agent’s control, then even the health differences between Norway and Japan could be an injustice. This injustice may not be as grave as the injustice present in the difference between Norway and Lesotho, and thus may be given lower priority in terms of global response, but it is an injustice nonetheless. So one question is whether this a plausible position. Should global health justice be egalitarian in form? On the one hand, if egalitarianism requires that we examine the health inequalities between Norway and Japan as a possible problem of justice, then one might reasonably conclude that this is a reductio ad absurdum of the egalitarian approach to health justice. On the other, the reason why this might seem absurd is that in the world we are currently in, there are more pressing health challenges to attend to, namely challenges that involve basic rights deprivation. Thus to get excited by differences among high income countries seems like a case of misplaced priorities. But if this is the reason, that of poor prioritization of attention and effort, this is a consideration that egalitarians can accommodate. It is not inconsistent for an egalitarian to say that ideal justice tells us that the inequality between two well placed agents amounts to an injustice, but the more urgent practical task at hand, the greater injustice, are those inequalities that have put some below a sufficiency threshold. Thus, one might be able to say that global health justice is ideally egalitarian without demanding that all cases of inequalities pose equally significant or urgent problems of injustice that need our equal attention right away. Health egalitarians need not be too caught up about the difference in life expectancy between Japan and Hungary, not because this is not a problem of justice, but because there are more pressing health inequalities to deal with. Prioritizing the worse cases is in fact a common strategy among egalitarians. When egalitarians in general prioritize the situation of the socially worst-off, this is an expression of their egalitarian commitments, not a repudiation of it. A difficulty with an egalitarian view of global health justice is that health outcomes are the results of the interplay of various complex factors, including domestic policies based on the complicated facts – like the value trade-offs societies make themselves and so on (see N. Daniels 2011b). But what the global health egalitarian will insist on is that there are nonetheless identifiable global factors that directly impact health outcomes, such as wealth inequality. To the extent that these factors represent injustices and to the extent that they shape health outcomes, they are proper subjects of egalitarian consideration.

IS HEALTH JUSTICE SPECIAL? Is health justice a special case? To clarify, the question is not whether health is a very fundamental good. For all individuals, good health is clearly valued both for itself and for the other things good health enables them to do. So basic good health is obviously special in this way, in that it is something really important for individual agents, the thing without which most other pursuits are not realizable.

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But the question about the special status of health justice is different: when we think about the just distributive of health goods, can we think about this in isolation from how other goods are distributed, or should we see a just distribution of health as something that has to take the distribution of other social goods into account? We can call this the domain question: is health justice a special domain of justice, to be theorized on its own terms? Or is health justice to be understood and examined within a broader ideal of distributive justice? That is, is there a distinctive theory of health justice that we can understand in isolation from a more general theory of social justice? As Sholmi Segall, a critic of the view, writes: “To say that health care is special … [we] imply that health care resources ought to be allocated in isolation from the distributions of other social goods” (Segall 2007b, p. 343). To illustrate the issue, consider a different problem of justice, that of climate justice. To slow down global warming, all societies have the general duty of climate justice to do their part, including that of reducing their CO2 emissions. If we take climate justice to be a special case, what some would call an “isolationist approach” to climate justice, we might then conclude that countries’ duties of climate justice (ie the duty to reduce emissions) ought to be allocated equally per capita or something along this line; or on how much they have polluted historically; and so on (see Caney 2012; see also Chapter 10). On this isolationist approach, how we distribute the burdens of climate justice (in terms of setting limits on emissions, e.g.) is carried out in isolation from other concerns of justice. On this approach, India (for example) will have to take on an equal proportionate share of the burden of CO2 emissions reduction. In contrast, if we examine climate justice as part of a larger theory of global justice, rather than in isolation from the just distribution of other social goods, then our allocation of emissions quota will differentiated against the economic developmental needs of poorer countries, will take into account the fact of economic inequalities, and the extent to which these inequalities are themselves are unjust and so on. We can be led to a different conclusion from the isolationist one with regard to say India and Brazil, thus concluding instead that from the perspective of global justice considered as a whole, the burden of emissions reduction for India ought not to be proportionally equivalent to what we expect of well-off countries (see Chapter 10). So, returning to our topic, does it matter whether health is considered special or an elemental part of social justice more broadly conceived? Here are some situations where it might matter: Suppose we have to prioritize the health care needs of one person over another’s comparable needs. How do we decide on whose needs to prioritize? Do we favor the (unjustly) disadvantaged, or do we work out the priority independently of background social justice? Imagine there is a need to allocate a scarce health good among two persons: do we say that the background advantages and disadvantages of both parties that are due to prevailing social injustice are irrelevant; or are they to be taken into consideration? To illustrate, let us consider the following stylized examples. Imagine we have one organ and two patients in equal need of it. Yet one of the patients enjoys informational, educational, and wealth advantages the other lacks because of prevailing societal

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injustice. Do we say that both are equally entitled to the transplant, or that the unjustly disadvantaged has more of a claim based on overall justice? This is a hard question, but going for the latter option would not be unreasonable. But even if our intuitions are mixed here, it is because this example presents an emergency situation in which our moral priority might be different from more ordinary situations. So a better analogy is as follows: supposed society has the option of opening up more primary care clinics – to provide basic preventative care, consultation, routine inoculations, health screenings and the like. Suppose the choice is to open more clinics in a well to do neighborhood and whose residents are already enjoying other advantages like good schools, access to healthy foods (good grocery stores etc), or to open these clinics in an underserved and disadvantaged neighborhood. Suppose further that people in the wealthier neighborhood are on average more vulnerable in terms of health, say, because of longer life expectancy they have a more elderly and therefore a more medically needy population. Taking health as an isolated case can tilt the decision in favor of the wealthy but elderly community, whereas taking health justice as an integral part of social justice would suggest the reverse. Which social health option sounds intuitively more just? Here, unlike the emergency case above, prioritizing the disadvantaged seems more straightforwardly defensible. We can extend this question to the global domain. Suppose there are two societies with comparable health outcomes (say equivalent life expectancy), yet one is globally better off than the other because of background global injustice. From the perspective of global health justice, which society has greater health care claims against the international community? Or imagine two unequally endowed societies in terms of social capital and natural resources. Yet the better endowed society opts to exploit its environment to maximize economic growth, whereas the second, less well endowed, chooses to go for a more environmentally sustainable and more health-conducive approach to development at the cost of (even) slower economic growth. Suppose then that as the result of its domestic decision, the average life expectancy of the members of the exploitative society falls below that of the second. One may criticize the first society for failing in its health care duties to its own citizens. But from the perspective of global health justice, what does the international community owe to each of these countries? With respect to global health justice, is the richer but less healthy society more entitled to assistance? Or is the healthier but poorer country more entitled? If we take health to be important both constitutively and instrumentally for a person’s conception of the good life, then it is the whole package of a person’s share of goods (or primary goods) that serves this end, of which health is only one part, that matters from the standpoint of distributive fairness. This means that we should adopt a more holistic approach to global health justice that, among other things, takes into account the situation of the worst-off. That is, health justice understood as a social policy should be holistic in this sense. A related reason why the holistic approach is preferable is that health justice should tend towards prioritizing the disadvantaged. This is not only because the socially disadvantaged tend to have more serious health challenges and poorer health outcomes,

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although that is also the case. It is also because marginalized groups in society face discrimination in the allocation of health goods. The Covid-19 pandemic exposes these facts vividly: minorities (African Americans and Hispanics in the US) are both more susceptible to the disease because of background disadvantages (work conditions, housing situations, poor primary care, etc) and more likely to succumb to the disease because of inequalities in terms of their ability to access and navigate complicated health care systems. To the extent that health disparities in society track background social injustice, it is all the more important not to treat health justice as a special and isolated case. At the very least, when we think about what a framework of just distribution of health should look like, it is extremely important that our principles of health justice (inadvertently or otherwise) do not further disadvantage people who are already socially marginalized. A holistic approach to health justice provides a safeguard against this slip. Now, one might argue that health justice has to be treated as a special case because health is special in the other sense identified at the start of this section. That is, health is special in that it is fundamental to our life plans – whatever else we want to pursue in life is made difficult or even impossible and/or meaningless without good health. But in reply, how heathy you are is the result of a complex interplay of a host of different factors – genetics, but also environmental and social facts. Poverty, income inequality, racism, inadequate educational opportunities are among the crucial “social determinants” of health (e.g., Segall 2007b, 335–336). This fact that health is determined to a large extent by background social facts reaffirms the holistic approach: if we take health justice seriously, we must be attentive to social injustice. If health justice is one aspect of and not separate from social justice more generally, then it shows that theorizing about global health justice must be integrated with the work of global justice. We will not be able to work out what we owe to each other globally by way of health justice without engaging the larger literature on global justice. I noted above, in the example of Covid-19, how a health crisis can expose and exacerbate underlying failures of social justice. But a global health emergency can also present a serious test for global justice. In a global pandemic, when people everywhere are at risk, how do we balance the prerogatives or even the obligations of governments to protect the basic health of their own populations and the general duties of global justice that we owe to all regardless of nationality or citizenship? Is global justice possible in a pandemic? We will turn to this question next.

GLOBAL JUSTICE IN A PANDEMIC What can a philosophy of global justice tell us about a global health crisis, like a pandemic? (I am writing this under lockdown in Philadelphia, as is the case in much of the world in late 2020 during the Covid-19 pandemic). What do we owe to each other, as a matter of global responsibility, during a global health crisis? What ethical

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principles should guide our action during an emergency and to what extent should an emergency ethic be influenced by considerations of global justice more generally? The distribution of abjectly scarce vaccines in the midst of a pandemic presents a frame for addressing some of these questions. Consider for example the challenging issue of how to fairly allocate vaccines in response to the Covid-19 pandemic. To achieve global herd immunity, about 60 to 70 percent of the world’s population needs to be vaccinated. But experts predict that the number of doses of vaccines necessary for achieving this goal will not be available till sometime in 2022 or (less optimistically) 2024.3 At the initial roll-out of any effective vaccines, only a fraction of the world’s population can have access to them. In the meantime, lives will continue to be lost or their quality impaired, countries will continue to suffer the economic, social and the direct and indirect health effects of societal lockdowns. In this condition of abject scarcity, what would be a globally just distribution of vaccines? It might be argued that in times of crisis, when the basic health needs of a country’s own population are at stake, governments are permitted, if not even obligated, to prioritize the needs of their own members over strangers. A just global vaccine distribution has no place in times of a global crisis, it might be claimed. The upshot then is that states’ first priority and obligation is acquire as many vaccines as they can to protect the health of their own people and to try to restore normal functioning – such as reopening the economy, schools as well as other non-essential activities. During the Covid-19 pandemic, this national hoarding of vaccines has come to be called “vaccine nationalism”. Thus, while an international institution or mechanism, such as COVAX, is mandated to distribute vaccines fairly among countries in the world from a strict impartial perspective, the obligations and prerogatives of states are more complex because governments stand in a special relationship to their citizens and subjects, and this special tie, according to some commentators, gives governments the right if not the duty to prioritize the needs of their own population.4 The upshot of vaccine nationalism is that several high-income countries have acquired, or reserved by advanced-purchase agreements with manufacturers, 94 percent of all the near-term availability of vaccines (as of December 2020). Canada, for instance, has signed contracts for 9 doses of vaccines per person, the USA 7 per person and the UK close to 6. Compare these with under half per person for Vietnam or Latin American as whole (excluding Brazil). Not surprisingly, the countries able to secure quantities of vaccines to protect their own populations several times over are the wealthiest ones. Is vaccine nationalism morally justifiable? We discussed the limits to national partiality under ordinary conditions in Chapter 5. While a crisis situation might suggest that all bets are off – that is, in an emergency it is: “everyone for themselves” – the considerations we brought to bear against partiality during normal times are in fact still relevant. The basic guideline remains applicable. This is the stricture that partiality is morally questionable when one is able to exercise this option because of the unjust advantages that one enjoys. This fundamental principle is hard to deny: I am not permitted to rob my neighbor in order to promote the interests of my child (no

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matter how urgent). Of course, I can be excused if I had to “steal” their car to take my child to the emergency room – to use the stock philosophical example. But I am not really entitled to the car. To the contrary, I owe my neighbors some explanation, an apology and even some compensation at the end of the day. But what some people will question is the claim that rich countries are able to exercise vaccine nationalism simply because they enjoy unjust advantages. They will say that it is wealthy governmental funding that helped discover and produce the vaccines; they say that it is the domestic purchasing power of countries as a result of their deserved economic success that allows them to contract with pharmaceuticals. How are these unjust advantages? Rather, they are matters of deliberative policy choices. In response, the unjust advantages that are relevant to our analysis lie further upstream. It is true that vaccines that are produced in rich countries are in part the result of governmental action and decisions and public support (that is borne by tax payers). But the question is why these countries are in the position to support and finance vaccine research and development in the first place. Why are some countries in a better economic position, and so better placed to make mutually advantageous deals with corporations? I think it is not contentious to say that the vast differences in the capacities of countries like the USA and Canada to acquire vaccines on the one hand, and the lesser capacities of countries like Ecuador or South Africa to do the same on the other hand, reflects existing background global injustices. One need not sign on to some demanding view of global egalitarianism (as discussed in Chapter 3) to hold this view. Anyone who believes more minimally that a just global order must meet some basic standards of sufficiency for all – that at minimum all societies must be able to provide for the basic needs of their populations and to support functioning institutions of their own – will have no trouble describing our present arrangement as an unjust one. Vaccine nationalism brings to a head the moral tension between meeting the demands of domestic justice and global justice. But if we agree that a country promotes justice at home and serves the human rights needs of its people consistent with what is morally right only when it does so with resources and goods that it rightly owns, then, at the very least, vaccine nationalism in practice is morally questionable. Its justifiability is not as straightforward as one might think. In other words, national partiality ought to be morally limited even in times of crisis or emergency (Beaton, Gadomski, Manson et al. 2021). What are the principled alternatives to vaccine nationalism? One proposal by the World Health Organization – the “fair allocation scheme” – proceeds in phases. In phase one, vaccines are to be distributed equally in proportion to a country’s population, first up to 3 percent of a country’s population and then in stages to cover 20 percent of the population. After that, phase two comes in, in which countries are prioritized depending on their specific vulnerabilities and risks. The equal proportional allocation (in phase one) of the WHO’s scheme (and its fair allocation scheme as a whole) is clearly preferable to vaccine nationalism. One drawback, however, is that this literal proportional equal distribution seems to be inadequately sensitive

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to conditions on the ground. On this scheme New Zealand would get the same amount of vaccines as Papua New Guinea. This seems counter-intuitive. An alternative to the WHO’s scheme is the Fair Priority Model (Emanuel, Persad, Kern et al. 2020). The Fair Priority Model (FPM) is also a phased approach. But it rejects equal proportional allocation and takes the guiding principle in the first phase of vaccine distribution to be that of minimizing premature deaths. The FPM thus is immediately attuned to the different ways Covid-19 has impacted countries, recognizing that some countries have suffered higher mortality than others. It will not result in the counter-intuitive conclusion that New Zealand and Papua New Guinea get the same amount proportionally. To be sure, equal proportional allocation from the standpoint of distributive fairness is a good starting point. It provides a reference point or benchmark for what, all else assumed to be constant, just and fair distribution requires. If we are sharing a pie, then absent any relevant countervailing considerations, we divide it up into equal pieces. But a principle of just distribution’s function is to specify the conditions in which departures from this benchmark of equal distribution are required. In this respect, the FPM offers a more well-developed account of just vaccine distribution. FPM implies that during an emergency, what is most urgent is saving lives rather than the promotion of some larger egalitarian goals. Here is an analogous situation. When an emergency room doctor has to prioritize and make trade-offs among the different patients needing urgent attention, what are the relevant ethical considerations? It is reasonable to say that in these cases the most basic moral imperative is to save lives or minimize harm. Two patients before the doctor may be differently situated in society due to background injustices. But the emergency room doctor’s role is not to try to correct for social injustices, but to save lives. This might mean deciding to prioritize treating the more advantaged person if their need is more urgent or if attending to them first is overall most expedient. There is a division of moral labor here and the task of responding to social injustice belongs to another and not to the emergency room doctor while she is in that capacity. In other words, principles of emergency ethics should not be confused with the principles of social justice. Emergencies present a special situation and the normative guidelines appropriate to this special situation are not meant to directly resolve issues of social justice more broadly. But this does not mean background concerns of social justice are irrelevant. They remain poignant by way of serving as checks on emergency ethics. Principles of emergency ethics must not discriminate against people who are already socially disadvantaged in an unjust society. For instance, we must take extra care that our emergency ethics do not discriminate (implicitly or otherwise) against some people on the basic class, race, educational level or language. So in this negative sense, the kinds of decisions we make in an emergency situation must be cognizant of background justice. So, likewise with vaccine distribution during a global pandemic. The more basic guiding consideration will be to save lives or to minimize premature deaths. A just global vaccine distribution can be framed with this primary goal in mind but

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with the important caveat that it does not compound or exacerbate background injustice. Moreover, vaccine distribution is only one aspect of multi-faceted response to a pandemic. Low income countries that are especially hard hit by the pandemic, directly or as consequences of necessary responses (economic lockdowns e.g.), should receive economic assistance, and other reliefs. Vaccine allocation when accompanied by other economic aid and assistance will help counter-balance any economic disadvantages that poor countries with low fatality will face under any fair vaccine distribution that is aimed at saving lives. But even so, the principles of vaccine allocation must be attuned to the conditions of the disadvantaged and the risks of disadvantaging further the disadvantaged.

JUSTICE AND SELF-INTEREST IN EXTREMIS: THE CASE OF COVID-19 Covid-19 has laid bare and accentuated persistent problems of domestic justice. In the United States and the United Kingdom, it is the most vulnerable individuals who have and are bearing the brunt of the pandemic, and not just in terms of health but also economically and socially. But Covid-19 is a global crisis, a pandemic, which raises questions of global justice as well. So while the pandemic has highlighted systemic injustices within societies, it is at the same time a challenge of global justice. As noted above, many low-income countries are severely impacted, if not directly in terms of health deficits – like high mortality directly due to the disease – then in terms of economic hardships due to economic lockdowns and indirect health impacts (like reduction in routine inoculations for children etc). So while we certainly have duties of justice to our fellow members of society, made even more pressing in this moment of national crisis, there are also pressing challenges of global justice. Here some might point out that in a moment of crisis, when our resources and capacities are stretched to the limit, doing more for foreigners means doing less for country: so we face a conflict of duties. (In other words, some might think that because of this competition between duties, we should favor our duties to our own.) We face what moral philosophers call a “moral dilemma” – a case of genuine conflict of duty. But this possibility of duty-conflict in an emergency does not mean that we get to abandon entirely any consideration of global justice. Instead we should confront these hard questions, and think through how we can best balance our competing duties of justice to each other, domestically and globally. It is clear that we owe much to people in our own country. In many respects, the pandemic has laid bare the ways our own society has failed its most vulnerable members. Still the response cannot be as simple as “America First” at any cost. We have duties as well to the globally most vulnerable. When we do successfully put this virus to rest in our own country, that success will be morally tainted if it is achieved at the expense of our minimal duties of justice to others (see Beaton, Gadomski, Manson et al. 2021)

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It is commonly urged that in a pandemic no one is safe unless everyone is, that diseases respect no borders. Therefore, it is self-defeating for any country to say “Our compatriots first at all costs” because, unless it is prepared to hermetically seal itself off from the rest of the world (if this is even feasible and/or sustainable), containing the disease just within your own borders is no victory. In other words, national selfinterest and global justice can happily coincide. This is an important point worth making: that in our highly entangled world it is increasingly difficult to think we can pursue national ends successfully while neglecting altogether what we owe to the world at large. So appealing to the nationalist’s parochial interest can help bridge the gap between justice and self-interest. But as powerful a rhetoric this is (and it is powerful because it is a very plausible claim), self-interested arguments for justice should be used with care. First of all, any convergence of justice and self-interest is at the end of the day contingent or coincidental. Sometimes, perhaps in a severe global pandemic, extreme nationalism is going to be a pyrrhic victory at best; but at other times, acting for the ends of global justly will require some national sacrifice. Consider for example, our discussion in a previous chapter that rich countries may have the duty to accept a greater burden of climate justice. Here, one might quickly add the following: “But it is in everyone’s interest to deal with climate change!” Yet in response, we can note that some countries just refuse to see that taking a short term economic hit in order to fix the planet is in their immediate interest, especially when that responsibility is not fairly shared by all (as per their understanding of what fairness must entail). Here is where a second consideration comes in: moral agents – individuals or countries – decide for themselves what their self-interests are. Now they may be mistaken and occasionally an intervention from without can disabuse them of their error. But often times, actors have their own views as to what is in their interests, based on some very complex trade-offs and understanding of the opportunity costs that they are prepared to make. In the end, then, how a country arrives at its understanding of what is in its best interest turns on its value-choices. For example, the path that Sweden adopted in response to the Covid-19 pandemic – no enforced lockdown for the purpose of achieving natural herd immunity – might seem contrary to Sweden’s interests. But the Swedes themselves are the ones to decide, based on the value trade-offs and opportunity costs that they are prepared to accept – what is the best course for them. They might be mistaken in the end that they have chosen the course of action that is best for them (this might well be a costly error that the Swedish government has since acknowledged), but these were risks that they were prepared take based on their value trade-offs they were prepared to make. So, self-interested arguments for global justice can have rhetorical force, and can be useful in the aggregate. It is always good to have more arguments for the same conclusion than fewer. However, at the end of the day, the case for global justice cannot be based entirely on self-interest. In moments of crisis, it is possible that duties to compatriots and duties to others come into some conflict. No doubt particular philosophers and schools of thought within philosophy will offer different responses to this problem. Indeed some (e.g.,

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utilitarians) will go as far as to deny that there is any genuine conflict of moral duties. And no doubt my own substantive views on these matters have seeped out here and there in these pages. But these hard questions are matters of debate in philosophy, and depending on which philosophers you listen to, you will get different recommendations as what justice requires of you. One might think then that philosophy is useless in moments of crisis – that at this point it is all a toss-up, that there is no right answer. To the contrary, philosophy, as a discipline, I believe is even more crucial in moments like this. Precisely because of the rich disagreements among philosophical schools of thought, philosophical analysis can shine light on moments of crisis by identifying the hard questions that confront us, the options we face, the value trade-offs that we are forced to make, and which ones of these decisions we make best reflect the values we say we are committed to. This is what publicly engaged philosophy does. It is then up to us, as members of the public, to responsibly work out the issues and to act in ways consistent with our own core commitments as we understand them.

STUDY QUESTIONS 1 What does a human right to health mean? 2 Does global health+ justice require equitable or a sufficient access to health resources and goods? 3 Is the idea of global health equality a feasible one? 4 Can we work out what we owe to each other as a matter of global health justice independently from what we owe to each other as a matter of global justice more generally? 5 Are our duties of global health justice affected by the fact that the current world order is unjust in different ways? 6 In a global health emergency, are governments permitted or even required to prioritize the health needs of their own populations over those of foreigners?

NOTES 1 For a discussion on sufficiency versus equality see Casal (2007). 2 The figures in the example are from the 2018 UNDP Human Development Report. 3 https://www.nytimes.com/2020/12/15/us/coronavirus-vaccine-doses-reserved. html 4 This is not to say that what fairness entails from a strict impartial perspective is obvious. See Emanuel, Persad and Kern et al. (2020) for a proposal of fair global distribution of vaccines, which the authors called “the Fair Priority Model”. See also Emanuel, Luna, Schaeffer, Tan and Wolff (2021) for a discussion of the Fair Priority Model in contrast to the World Health Organization’s fair allocation scheme.

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REFERENCES Jonathan Wolff, The Human Right to Health (2013b). Jennifer Prah Ruger, Global Health Justice and Governance (2018b). Norman Daniels, “International Health Inequalities and Global Justice: Toward a Middle Ground”, in Global Health and Global Health Ethics (2011b). Shlomi Segall, “Is Health Care (Still) Special?” (2007b)

FURTHER READING See Benatar and Brock (2011) for a collection of essays on global justice and global health; see Prah Ruger (2018) for a capabilities approach to global health; see Beaton et al. for global pandemic and global justice; see Emanuel, Persad and Kern et al. for a proposal of fair global distribution of vaccines.

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reparations: is international reparative justice possible and necessary? Is reparation for past international injustices possible and necessary? By this, I mean the following: First, can we sensibly talk about international reparations for past injustices where neither the individual perpetrators nor individual victims of a past injustice are still present? Who owes whom the duty of repair in this case? One might be tempted to say that for this reason, reparations for past injustices is not possible. Second, what is the purpose of reparative justice? Why not just attend to the requirements of global justice for the here and now? If we are able to realize forward-looking principles of global justice (that we discussed in the earlier chapters), what work is left for reparative justice to do? In fact, why complicate things by bringing up the past instead of focusing on justice for people in the present? That is, are reparations necessary? These will be the guiding questions of our survey on international reparations.

PHILOSOPHICAL PROBLEM: WHO OWES WHOM? In a basic sense, reparative justice involves making amends for some previous transgression of justice by the wrong-doer. (What this making amends amounts to or requires is a matter we will return to below.) As a basic principle, the idea of reparations seems relatively uncontroversial. Virtually no one will deny that if you willingly injure another person, you owe your victim at least some accounting and DOI: 10.4324/9780367821531-13

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explanation. Even libertarians who say that we do not have any default positive moral duties to each other, that our basic duty is the negative one of not harming others, will allow that when you willingly violate your negative duties to others (e.g., if you fail to comply with your duty not to harm another), you can incur the responsibility to take action to make good the injury. But this duty to repair an injustice presumes that we can reasonably identify who the wrong-doers are and who therefore have this duty of repair, and who the victims of the injustice are, and who have the standing to make claims for repair. In many instances of reparative justice, the injustices that took place were relatively recent and so we can know who should make amends towards whom. For instance, in the Nazi Holocaust, some survivors or their immediate descendants are still present to make demands against the German state. The problem of reparations arises when the injustice at issue occurred in the distant past such that it is no longer easy to locate the “who” and the “whom”. Take for example European colonialism and imperialism, and the Atlantic Slave trade (not to mention actual chattel slavery in the Americas). How are these wrongs to be repaired? What does righting these wrongs even mean? And who is to do the repairing and who is to be the recipient? Even if we could identify the specific actors who were at historically at fault (by no means a straightforward task itself), the problem is that they are no longer themselves present to take on the duty of repair. The same thing can be said with respect to reparations for the slave trade and slavery. The individual traders and the slave holders are no longer present to be held to account, and the actual victims of the trade aren’t around now to receive any compensation. It is reparations for international injustices in the distant past that we are going to be concerned with. In these cases of past injustice (as I will refer to them), it seems that we are calling on people in the present to atone for the actions of a previous generation. Thus, in cases of past international injustices, the matter of who owes whom is a major philosophical sticking point. For example, do British citizens today owe present Indian citizens reparations for the colonialization of India? And are present day Indians the proper recipients of any reparative action? The situation is further complicated by the fact that the creation of the modern state of India itself was intimately tied to its colonial history. If it weren’t for the injustice, the group or people making the claims today would not even be present.

WHAT IS REPARATION? Before we get down to the business of unpacking the “who” and “whom” issue, there is the question of what is owed by way of reparations. That is, what does reparations consist in? What is required by way of reparations? Must they entail the return of that which was wrongly taken away? Must there always be payment of some kind? And must it involve some kind of acknowledgement or even an apology of some sort, such that payment without admitting to the wrong does not discharge a duty of reparations? This is in part a substantive question that we will return to later.

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But it will be helpful to do a bit of taxonomy to clarify for ourselves what is it we are interested in when we talk about reparations. This is especially useful since there are nearby cognate normative concepts which seem identical to “reparations” in some respects but not others. So we can start by relating “reparations” to the following: restitution, compensation, and acknowledgement or apology (Boxill 2010b, Darby 2010b). We should note that “reparations” can still be a rather fluid concept and has been defined (slightly) differently by different authors in light of their own substantive commitments about the basis and purpose of reparations. But our aim here is not to engage in defending a particular definition, but to clarify the sense of reparations that we are concerned with. First reparations need not be restitution in one common sense of the term, restitution as in the returning of the very thing or object that has been stolen or taken away. For example, there is increasing discussion among international museums on the repatriation of cultural objects to their countries of origin. Restitution in this sense will of course be a form of reparation, but it is clear that it is not necessary for reparations to take the form of restitution. Sometimes it is just not possible for restitution in this literal sense to take place, yet calls for reparations can make sense. The victims of the Holocaust and their families cannot get back what was brutally wrenched from them – the destroyed lives and families, the unspeakable mental and physical suffering – but reparations can still be demanded. In this case, the demand is not for that which was taken away – nothing can bring that back – but for compensation with the acknowledgement of the wrong that was done. So reparations need not take the form of an actual restitution of that which was taken away but can be in the form of a compensation for the loss (i.e., a restitution in kind). Hence, there must be some kind of payment (whether in the form of the actual restitution or compensation) to the victim of the injustice. What the actual amount of compensation should be will depend on the context. By default one assumes that it will be equivalent to the costs of that which was taken away (although here we get into the messy business of putting a price on human lives in cases where the injustice involved loss of lives, something that economists do) plus the opportunity costs of being deprived of the stolen goods. These are difficult but not impossible calculations, and if there is any inherent indeterminacy, they can be resolved perhaps procedurally or by some arbitrary decree (as encapsulated by the token of “40 acres and a mule” promised to freed people). The point is that reparations have to include some kind of compensation. Naturally, rightful claimants may opt to waive any compensation, or demand only some kind of superficial payment for symbolic purpose. But the point of making reparative actions is normally because of perception that victims of injustices have the right to some form of compensation. Apologies not backed by any effort to compensate can ring hollow. Yet compensation alone is not sufficient for reparative justice. An act of compensation as such does not imply any wrong-doing on the part of the compensator. When your insurance provider compensates you for a loss, it is not doing so because it is causally responsible for your loss. It is liable for your loss in the sense that it has the responsibility to cover you for it. But it is not culpable for your loss and its payment

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to you does not mean that it has also accepted wrong-doing, nor do you expect it to. The insurance company’s compensation is not an act of reparation. On the other hand, when you issue a reparative demand against an actor, you are not only rightly asking her for compensation (if you opt not to waive this right), but you are asking her because she has wronged you. That is, you also expect some acknowledgement or recognition of the injury she has caused. So reparation is not just about offering compensation. It is compensation tacked on to an admission of having done wrong. This is why compensation for a past injustice without a formal acknowledgement and apology by the perpetrator is often rejected as insufficiently reparative. We see this also in analogous scenarios: Out of court settlements that plaintiffs are sometimes compelled to accept are unsatisfying because the payment (however large) is not accompanied by some formal recognition that a wrong was committed. In short, reparation does not entail restitution (as in the sense of returning exactly that which was taken), although it can (as in the repatriation of stolen material cultural objects); reparations must include the duty to compensate (indeed some kind of payment is usually behind the demands for reparation), although a claimant may choose to waive this requirement; and reparations must include some recognition (best expressed in the form of an official apology) of responsibility for the wrong that is being compensated. Having clarified the concept of reparations for our purpose, we will turn to the question of what reparations substantively require in a later section. But first, let us attend to the who and whom question. To anchor our discussion, we can ask: who owes whom the duty of repair for the injustice of European colonialism.

THE INJUSTICES OF COLONIALISM Among the frequently heard demands for international reparations for past injustice are those made in response to the Atlantic slave trade of the fifteenth to nineteenth century and the enslavement of people from the African continent, and for European colonialism and imperialism in Asia and Africa, as well as its settler colonialization of the Americans and Oceania (Australia and New Zealand) with drastic consequences for indigenous populations. Also, as we saw in Chapter 10, reparations also come up in the debate on climate justice, as when the argument is made that countries that have historically emitted more greenhouse gases, and therefore have caused more harm, should now bear a greater share of the cost of addressing the problem (the “polluter pays principle). To focus our discussion, we can fix on the case of European colonialism in Asia and Africa (as well as its practice of settler colonialism in the Americas and Oceania). This was a grand historic event that began roughly in the fifteenth century and formally ended (although still not entirely) in the twentieth. Is there a case to be made for colonial reparations? To get some purchase on this question, we will need to identify the various injustices associated with

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colonialism at which reparative claims are directed. The unique wrong-making feature that makes colonialism a distinctive kind of injustice (as opposed to say another instance of unjust war, or another instance of grand theft) is an interesting and important matter that has engaged philosophical attention (Ypi 2013, Moore 2016). But colonialism as a historic event is accompanied and enabled by a diversity of injustices and the calls for reparations for colonialism are calls that are targeted at these different injustices. Thus, in the reparations discussion, what is central is not the unique injustice of colonialism, but the fact that it involved a host of different injustices. So, what are the various attendant injustices of colonialism, and how feasible is it for anyone to compensate or take responsibility for these wrongs? First colonialism involved direct violations of persons, as when they are killed or physically injured, dispossessed of common or personal property, deprived of means of subsistence and the like. But the harms of colonialism were not just directed at persons but at societies. So as a second form of injustice, colonialism was economically exploitative. Natural resources were extracted, local economic developments were thwarted and the colonies made economically dependent on the metropolitan centers. Third, perhaps most significantly, colonialism was unjust because it undermined the political self-determination of people. Instead of getting to determine and shape their own political life, colonized societies have alien rule forced on them. Finally, colonialism displaced local cultures. As Fanon has pointed out, the economic exploitation of the colonial powers was assisted by a policy of ‘cultural estrangement’. The cultures of colonized peoples were degraded and devalued and it was ‘consciously’ driven into “… the natives’ heads … that if the settlers were to leave, they would at once fall back into barbarism, degradation and bestiality.” The result is a sense of cultural inferiority among colonized subjects, especially among the local elites who have been schooled in the ways of their colonial rulers. Thus, as Fanon adds, a central struggle of postcolonialism is the rehabilitation and revitalization of local national cultures that have been eroded by colonial rule. In other words, the injustices committed by colonialism cover the range of economic, political and cultural injustices as well as basic violation of personal rights (to life and private property). The objects of these injustices include tangible material goods and non-tangible losses (way of life). This tells us that calls for reparations for colonialism are not a singular type of demand but take different forms in different contexts: for some, it will be economic compensation for the economic losses; for others it will be to contribute to the repair of a cultural way of life; and for yet others, as in the case of indigenous peoples, it will require restoration of territorial rights with some degree of self-rule. Demands for colonial reparations are demands directed at these various concrete injustices and not at colonialism as some abstract and general event. So this gives our discussion some traction. Yet these are injustices that largely took place in the very distant past, thus raising the questions of who should bear the burden of colonial reparations and who has the standing to demand them.

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WHO AND WHOM? Who owes whom reparative duties? When both individual perpetrators and victims of injustice are known and still present, the question of who owes whom is straightforward. Call this the simple case. But in the case of past injustice – as in colonialism – the question becomes more contentious. How can we proceed? If present people themselves did not commit the injustice, wouldn’t making them pay not be a case of “visiting the iniquities of the fathers upon the children”? The Bible notwithstanding, most of us will ask, “How is this fair?”. Also, would it not also be unfair if people who weren’t themselves victims of the injustice receive reparative compensation? After all, why them and not some others?

THE NORMATIVE-INDIVIDUALIST APPROACH One proposed solution maintains the normative-individualistic presumption in the simple case, and tries to argue that while individual perpetrators and victims are no longer alive, present individuals are somehow also complicit (and so there is a present who) and that there are still individuals in the present who continue to be wronged (so there is a present whom). In the context of reparations for European colonialism, as in British colonialism in India, the individualist approach will have to show that the duty of repair for this past injustice can somehow be fairly imposed on present British citizens and that individuals living in the Indian sub-continent today somehow are the proper claimants of reparations. (There will likely be individual survivors that can make demands against each since British colonialism in India ended formally only in 1947. But the majority of the individual-players in the colonialism enterprise are no longer around: British colonialism in India formally began in 1858, and centuries earlier if we count the effective colonial rule administered by the British East India Company.) So how can there be duties of reparations among present individuals for this past injustice? The most obvious strategy in response to this challenge is to show that the injustice is not hermetically sealed off and contained in the past. The injustice is “passed forward” and lives on. This is perhaps most obvious when we are dealing with tangible goods. If some ancestor of mine stole an heirloom from your ancestor which has been passed down to me, it is not immediately nonsensical to say that I have the duty to return it to you. The repatriation of cultural objects looted during European colonialism and wars of conquest will fit this form of reasoning neatly. The stolen objects remain in the ends of present people, there are present people demanding them back on account of their rightful heritage to them. So at least the problem of unfair allocation of burdens and benefits on present people seems resolvable. This is not to deny that there can be other complications with respect to returning stolen property over time. Some complications include things like statutes of limitations, my special care of therefore adding of value to the stolen objects, and so on. But the basic point is that there is at least the prima facie claim that I am not entitled to these goods; that the fact that it was people now dead who committed the injustice is not necessarily a problem.

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But as noted above, the injustice of colonialism is more than that of the straightforward theft of tangible items (and so reparations for colonialism are more than just the issue of repatriation of cultural objects). It also involved economic exploitation, and the denial of political and cultural self-determinations. One might argue that the economic advantages gained from colonialism continue to advantage the perpetrator societies in the form of the inheritances of unjust gains and the head start in the global economic playing field, whereas the people in the former colonies are suffering from the loss of deprived inheritance and delayed economic development and independence. Thus, one might try to show that a past injustice continues to unjustly advantage some specific individuals while disadvantaging others and so there are people at present on whom we can place the duty of repair and others who we can identify as the proper claimant. Bernard Boxill provides a good example of this form of argument. In his discussion of reparations for African American slavery, Boxill argues that while slavery in America officially ended in 1865, its injustice lingers and has rippled down to the present. A case of this continuing injustice for Boxill is the fact that the promised compensation for slavery at the time of its abolition (symbolically represented by the “40 acres and a mule”) was not honored. If anything, African Americans continued to be oppressed politically and economically by other means (e.g., Jim Crow laws). This failure to compensate remains an injustice, an injustice on the part of descendants of the people who ought to have provided the compensation. On the recipient side, the victims are the descendants of those who ought to have received the compensation. The past injustice of slavery in other words lingers in the present because of this denial of the right of inheritance. Boxill’s writing is a good illustration of the individualist approach. The individualist’s general strategy is to try to show that the past is not simply the past – that the past injustice is still very much at play, with its present cast of perpetrators and victims. In this way, those who bear the duty of repair aren’t being unfairly made to pay for the sins of their parents. They are, in fact, personally perpetuating the wrongs that their parents began, and it is for their continuation of the injustice that they are being asked to take responsibility. On the demand side, the benefactors of reparations aren’t getting reparative dues that are really owed to someone else. They are being made whole for injustices that are being inflicted presently and personally on them. The normative-individualist approach has obvious philosophical appeal. It extends the basic moral framework for about reparations for simple cases to the more complex case of past injustices. That is, it is still all about individual agents and individual responsibilities. In the colonial case, even though the individual actors in the historic event have (mostly) passed on, the injustice of this historic moment lingers on, in the form of unpaid compensation, in the form of stunted economies of former colonized countries, and in the fact of the current uneven global economic and political playing field. There is also the ripple effect of the loss of cultural self-esteem and the basis of cultural self-respect (recalling here Fanon’s observation). The history of China is too complicated to parse here, but as many students of Chinese history have noted, we can’t understand China’s current foreign policy if we don’t understand

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that China is still working to overcome the blow to its civilizational self-esteem as a result of European imperialism. So the individualist approach offers a plausible solution to the who/whom challenge. But the advantage of its individualism comes with a price. Its success turns on its ability to provide the normative connection between the past injustice and present actors. Yet these causal claims are not necessarily easy to make. Who exactly are descendants of the perpetrators who are continuing the harm and benefitting from it? And who are the descendants of those entitled to compensation? And what is it that they owe to each other? Is an inheritance (and its corresponding loss) due to a past injustice something that can be stably passed down from generation to generation in a uniform way in all family lines, such that each rightful heir today should be entitled to the exact amount of compensation? What exactly would have remained available for them to inherit? If descendants of victims of past injustices ought to have counter-factually inherited that which was stolen from their forebears, how can we be sure of the amount that would have been successfully bequeathed through successive generations? This indeterminacy of “reparations of what” coupled with the fact that of unfairness on present persons makes the idea of reparations for past injustices philosophically dubious. That is, in the interim, new claims of justice can arise and these new claims risk being undermined if a past wrong is to be repaired. For instance, current occupants in a territory that was wrongly seized by their ancestors a long time ago can over time acquire some just claims over the land, and these new claims do have some moral weight. For reasons of this kind, Jeremy Waldron has argued that at some point, past injustices can be superseded and calls for their reparations thereby inappropriate (Waldron 1992b). Perhaps even more fundamentally, attempts to squeeze reparation talk within an individualistic normative framework risk changing the subject. This problem can be clearly seen in Boxill’s approach. The argument has transformed, under Boxill’s reasoning, into an argument about the wrongness of the unpaid compensation for slavery, as opposed to an argument about the wrongness of slavery itself. The point is not that reparation for failures of compensation is unimportant – to the contrary it can be significant. The point is that it is no longer an argument for reparations for a past wrong but for a different present and ongoing wrong. That is, the normative individualists begin with the question, “How can we make reparations for a past injustice?”, but they end up side-stepping it. They in effect respond that we don’t know how to justify reparations for the past injustice, but we can address another prevailing injustice that is temporally connected somehow to that past injustice. This might very well be the right thing to do, but it is not an argument for reparations for the past injustice. In sum, the normative-individualistic approach has the advantage of starting with the uncontroversial moral principle that individual moral agents are the proper bearers of moral claims and responsibilities. Its main challenge, however, is to show how a past injustice can implicate present individual actors. Yet as the injustice recedes further and further into the past, it becomes increasingly difficult to establish the normative connection between each passing generation. (This is Waldron’s

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supersession challenge.) At some point, the claim that some present individuals may be held accountable for the past injustice carried out by other individuals becomes increasingly tenuous.

NORMATIVE-COLLECTIVIST APPROACH But what if individuals are not the only kinds of agents that can have moral responsibilities, that collective agents (groups like nations or states) are also moral actors and as such can be held accountable for past injustices and can be benefactors of reparations? Philosophers like David Miller and Daniel Butt are good representatives of this collectivist approach to international reparations. For Miller, international reparation for past injustices is a matter of holding nations as a collective actor responsible (Miller 2007b; Butt 2009). If collective agents can be held accountable for past wrongs and other collective agents can be conceived as the appropriate injured parties, then the problem of reparations is no longer that of pinning the cost and benefits of reparative justice on individual agents but on the relevant collective agents. If Britain was the actor that acted unjustly against the peoples in the Indian sub-continent when it colonized them, then Britain is the actor that owes compensation to the peoples there. The specific injurers and injured individual persons may no longer be around, but if the collective moral agents remain present, then reparative demands can be made straightforwardly. It is as simple as the case of reparative demands you can make against me now for the injury I inflicted on you last month because we are both still around for you to make a demand against me. This talk of collective agency is not as implausible as it might sound to some readers. We already speak that way with respect to business corporations. We hold corporations responsible collectively for their transgressions. An oil company creates an environmental disaster, and we will want to go after and hold accountable particular individual actors (the careless rig operator; the callous executive who ordered that corners be cut). But we also hold the corporation itself responsible. It will have to make amends and pay for damages in ways that will affect individuals who weren’t personally at fault. Stock holders for example will take a hit. It is not implausible philosophically to hold a corporation responsible for its actions in a way that is not reducible to the sum of the decisions of particular individuals. When we do this, we are implying that corporations can be treated as moral agents in themselves and not just as aggregations of their constituent individual actors. So if we are prepared to accept the idea of collective moral agency, the problem of reparations for past international justice becomes a different one from that which confronts the normative individualist. The problem is not that of showing how and why individual actors in the present are relevant bearers and recipients of reparative duties. Instead, the past injustices were injustices that involved collective moral entities that are still around today to take on the cost of reparations on the one side, and to be benefactors on the other. On this collectivist approach, it is neither here nor there that the present individual members of the collectives weren’t themselves

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at the scene of the injustice. It doesn’t matter that you, the new CEO of BP, weren’t personally at the helm at the time of the oil spill. The company that you are now the boss of still has to pay up. So too with national injustices: it doesn’t matter that few or even no present-day British citizens had a personal hand in Britain’s colonialization of Asia. It is the British society that has to pay up. Holding nations collectively responsible therefore seems to side step the unfairness problem of holding present moral actors accountable for something they did not do. It is the nation we are holding accountable, it is the nation who owes the reparative duty and not individuals. There is no visiting of the sins of fathers on their children. One might quickly object that the collectivist’s circumventing of the unfairness issue is just a sleight of hand. It does not really solve the unfairness problem because ultimately it is still individuals here and now, and who had nothing to do with the injustice personally, that have to bear the reparative burden. By holding Britain – the nation – collectively responsible for, say, colonialism in India, we are nonetheless, at the end of the day, asking present day British citizens as individuals to pay up. That is, a collective duty must still trickle down to individual members of the nation and they are the ones who are being held liable. So how is this fair? Yet this objection is too hasty. Individual members of a collective – be it a corporation or a nation or state – assume a host of responsibilities and even liabilities simply in virtue of their membership in the collective. These responsibilities and burdens are for the purpose of addressing a range of social challenges and problems, and these can be problems for which individuals had no causal role in bringing about. As an individual member of a state, I have responsibilities to support public education, public transportation, social welfare and other redistributive social projects simply in virtue of my status as a citizen. It is not because I somehow committed some fault and so am now asked to pay my share to support public education or public health. In other words, individual members of a political society have various shared civic and social responsibilities (e.g., Fullinwider 2000). This is just part of what it means to be a participating member of a state. Individual citizens have these in virtue of their political membership in a political society and not because they are somehow in the wrong. Taking on a share of your nation’s collective reparative duties can be among your share of your societal duties. Now the objection might attempt a last gasp: But if individuals are responsible for bearing reparative costs, aren’t we not in effect holding them to be at fault, that they are somehow implicated in the injustice? And so, isn’t this an unfair attribution of blame and fault? In reply, we can note that although it is individuals (even under the collectivist approach) who will be liable to pay the price of repair, this is not the same as blaming them for the injustice. Liability does not imply wrong-doing or culpability, just as when my insurance company’s liability to me (e.g., to compensate me for storm damages) does not mean that it is also to be blamed for my troubles. The insurance company is liable to me (in the sense that I can make claims against it in court should it refused to cover me as per the terms of its policy), but we don’t say it was at fault with respect to the damage. The company is liable for the damages even though not culpable for them. Likewise, individual agents of a nation that committed a past injustice will in the end be liable for assuming the collective

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cost of reparations. But we aren’t holding them culpable for the past injustice. On the collectivist approach, it is the nation that remains the culpable party. In short, to say that present day citizens have some share in the collective duty of their nation to make good their nation’s past injustice is uncontroversial in the same way that holding present day members of a society for the shared national debt incurred by earlier generations is uncontroversial. Just as present-day members of a nation get to inherit the benefits of their nation’s past achievements, so they also get to inherit the liabilities of their nation’s past mistakes (Miller 2007b). The really interesting philosophical challenge for the collectivist approach is a more basic one: how can we make sense of the nation as a collective moral agent in its own right. We think we know what it means for an individual to be a moral agent; but it seems less clear how a collective like a nation can be one in itself. After all, if a group of individuals is a moral actor, isn’t this just a way of saying that statistically the individuals in the group act in such a way that the group itself seems to have a moral personality of its own, but it is still at the end of the day the sum of individual moral actors and not an agent in its own right. But this dismissal of real collective agency is too fast. If we think that individual persons are moral agents not because they are made of flesh and blood, but because they have interests, intentions, and deliberative capacities, and that they can be individuated (that is distinguishable from other actors), then it is not possible to conceive of collective entities like the business corporation, and nations and states, as moral actors in themselves along similar lines? Don’t corporations and nations have interests, intentions, deliberative capacities and individualities in ways that are not just reducible to the sum of the interests, intentions, capacities and characteristics of their individual human members? In this history of political philosophy, J.J. Rousseau speaks of the political society as a sovereign actor in its own right, with a good of its own. Like a true moral actor, has a will of its own that is not just the sum of private individual wills, which he famously calls “the general will”. The philosophy of collective or corporate moral agency is a rich and complex one, and it is not something that we can resolve here decisively. The main point we should take away, however, is that the collective approach is not metaphysical nonsense but an approach that has a rich philosophical tradition, and a very plausible option to reparations that is worth keeping in mind. So here is the balance sheet for the individualist and collectivist approaches. Recall the central issue is how is it fair to make present moral actors bear the price of reparations for an injustice that they themselves did not commit; and conversely how is it fair to allocate reparative compensation to persons who weren’t themselves the injured party. The individualistic approach is metaphysically straightforward since it does not need to posit moral actors besides the individual person. That’s the plus. On the minus side, as we have seen, it has to make potentially controversial claims about how present persons are somehow causally connected in a normatively significant way to the past injustice. As we discussed, this is not always straightforward, especially the further back in time we go.

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The collectivist approach avoids the need to prove relevant causal connections between individual actors across time. This is its advantage over the individualistic approach. Its downside is that it has to defend the idea of collective moral agency. As noted, this is not an outrightly nonsensical notion but a matter of serious philosophical debate. But it does mean that the collective approach has to bear this extra philosophical freight, a matter that is further complicated because it is harder to show that the nation is a true collective actor than say a highly formalized and structured entity like the business corporation. Again, this is not a fatal objection, but a challenge that the collectivist approach has to meet.

REPARATIONS OF WHAT? As noted above, reparations need not take the form of a restitution understood in the sense of returning that which was taken. In many past injustices, restitution in this sense is simply not possible or feasible. For instance, it is not possible to return the basic liberties and lives taken away from individuals during colonialism or slavery. Nor is it possible to return literally the right of political cultural self-determination at a particular point in time that was due to colonialism and the loss that went with that. And while it is logically possible to return territories taken from indigenous peoples through settler colonialism, a whole sale territorial restitution is unfeasible in large part because it will reintroduce additional injustices. However, this recognition that reparations need not be exact restitution in fact shows the way forward. If we think that reparations must be restitution, then we might conclude quickly on account of feasibility constraints that reparations are out place. For instance, it is not clear how restitution in the strict sense is realizable in the case of colonialism and especially settler colonialism. But if reparations can take other forms, then introducing the idea of repairing the injustice of colonialism, including settler colonialism, is not something we need to rule out of court. For instance, reparations can in, these cases, take the form of financial compensation alongside official acknowledgement and apology. In the case of settler colonialism, the acknowledgement and recognition of the injustice can be complemented by the implementation of minority group rights, such as recognition of the rights of indigenous peoples to limited self-government, regional autonomy and special cultural rights. Thus the form reparations must take is not fixed in the abstract and therefore not necessarily so unfeasible that they must be dismissed. What reparations entail for any past injustice will depend on the context and further subject to deliberation. Some of the relevant criteria of a just deliberative process on reparations include the nature of the past injustice at issue, the form of repair the injured parties are asking for, and the reasonableness and feasibility of these demands. Often, while an official apology is important, financial compensation is that which is asked for. Indeed, a point of the acknowledgement and apology is to then accept the responsibility to take steps to make amends. In other cases, demands for reparations are not fundamentally demands for financial compensation. For example, Korean women who

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suffered sexual enslavement by the Japanese military during WWII said that reparations for this war must include a formal and public acknowledgement and apology by Japan and not just monetary compensation. Indeed, for some of the victims it is the formal acknowledgement that reparations required and monetary payment is merely symbolic. Speaking of British colonialism in India, the Indian diplomat and writer Shashi Tharoor says that no specific amount can make up for “two hundred years” of injustice. For Tharoor, what is most important is an acknowledgement and apology for the wrong, and that he “would be happy to accept a symbolic pound a year for the next two hundred years, as a token of apology.”1

WHY REPARATIONS? What is the purpose of reparations? At its most basic, it is the idea that a wrong doer has to be held accountable and has the moral duty to make amends, and, conversely, that the injured party has the right to demand that amends be made by the wrong doer. The duty to make amends and, conversely, the right to it is uncontroversial even to libertarians who accept only a default negative duty to do no harm. This duty to make amends is what philosophers would call a “pro tanto obligation”. That is, although it is an obligation, whether it is decisive (in the sense that you must act on it) depends on other competing considerations. Sometimes, it might just not be reasonable to expect you to act on your duty to make amends in light of other moral factors. Otherwise, all else permitting, you are obliged to make good the wrong you caused. But the problem, as we have discussed, is that with the passage of time, this simple idea of taking agential responsibility for harmful actions can run not just into competing considerations and philosophical difficulties, but it might seem out of place. (This is the challenge that we considered above.) Because of these difficulties, demands for reparations typically face political resistance and are often met with indignation. So given the resistance, is it really worth the while to mount reparative arguments? Is it really necessary? There are perhaps other reasons why reparations are necessary, the controversies surrounding it notwithstanding. Besides the basic principle of righting past wrong, another consideration for reparations is that if certain past injustices are left unrepaired, just or rightful relations among persons in the present (i.e. relations based on equality and respect) will be difficult to achieved going forward. Past injustices cast a very long shadow into the present and future, and if left unacknowledged, and unaccounted and uncompensated for, they can undermine the prospect of realizing justice for the here and now. That is why, for example, the belief that Japan has not made adequate amends for its atrocities during WWII continues to hamper its relations with countries in East Asia today. Reparations allow for a moral reset, as it were, among the relevant parties. No doubt it is naïve to think that reparations for European colonialism, for instance, will assuage all suspicion and mistrust in the relations between former colonial powers and colonized countries, not least because of continuing neocolonial practices and attitudes in international affairs. Three to four hundred years of

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international injustice will take time to heal. But reparations will be an important first step towards restoring reciprocity and equality in international relations. Even though the moral-reset case for reparations is motivated by the concern for present and future relations among the relevant parties, it is still an argument for repairing past injustice. It is the past injustice that is in need of repair, as opposed to some other injustices, like the fact of prevailing economic inequality. The past injustice remains normatively significant, and is the locus of concern, even though the consequence of righting this wrong is the restoration of present moral relations. But the world we now live in is severely unjust, characterized by significant political and economic inequalities as well as the more basic facts of extreme poverty and political injustices. If these are problems that are already covered by forwardlooking principles of global justice – that is principles directed at current problems – what is the necessity of reparative justice? Suppose that the forward-looking distributive principles we discussed in earlier chapters if implemented will result in an egalitarian world order. If we can do this, what’s left for reparations to do? If global justice now entails greater redistribution between rich and poor countries, then why not attend to the requirements of global justice for the present, and not complicate things by digging up the past? In response, here are some counter-considerations: first, not all parties that suffered a past injustice are today unjustly disadvantaged. Some former colonies today – e.g., Singapore – have gone on to outperform their former colonizers economically. For others – like South Korea’s demands for reparations against the war crimes of Japan – what is sought is less economic compensation but official acknowledgement of the wrong and an apology. For them, reparations have little to do with global distributive justice. The belief that present distributive justice suffices to put everyone back on a level playing field makes the mistake of thinking that reparation is (solely) about compensation. Second, distributive justice is not the whole of justice. That is, injustices can still linger even if our favored distributive principles are fully realized. As noted above, the idea of reparation is founded on the basic idea that there is the duty on the wrong doer to make compensation for a wrong done (and a corresponding right on the part of the injured to that compensation). So even if present concerns of global justice entail distributive obligations between former colonizers and their former colonies, this does not obviate the need for reparations. The fact that your present duty of justice requires that you have obligation to another does not mean that the past wrong you inflicted on her is normatively rendered irrelevant. It only means that you bear both the obligation of distributive justice and the obligation of compensatory justice. Distributive justice adds to your responsibilities if you have done some wrong in the past; it does not obviate your obligation to fix the wrong. Finally, we should not forget that reparative arguments can have rhetorical force and can provide additional rationale and motivation for action when needed. As we saw in Chapter 2, a reparations-based argument that the responsibility to take action against extreme global poverty can be useful against the libertarian. We can grant

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the libertarian that the basic moral duty we owe to each other is that of “doing no harm”, but then show that we have failed in this regard and hence have the obligation to make amends. This move does not pretend that establishing that there has been some failure to comply with the duty of not harming is easy to show, let alone show that present actors are somehow morally implicated in the case of a past injustice. But it provides an alternative strategy against the libertarian. Relatedly, reparative arguments can be part of a plurality of arguments which will have broader persuasive power. For example, an aggregate of arguments for racebased affirmative action, among which reparative justice can be included, can target audiences with a variety of moral sensibilities. In short, reparations are necessary even in cases where the party receiving reparative dues are also the ones whose claims that justice here and now ought to prioritize. That is, even though realizing present justice will improve the situation of the wrongly disadvantaged, the fact that they had also been wronged in the past is not rendered irrelevant. First, the principle that a wrong has to be righted is basic. Second, unaccounted for past injustices can taint and impair moral relations among people in the present. Third, reparative rationale can provide additional argument and motivation for attending to present day injustice. If the inequality among countries today is not just a matter of present failures of distributive justice but also a result of past international injustices, this adds to the aggregate of arguments and reasons for action.

SUMMARY Who owes whom a duty of reparations for a past injustice? This is a central question of this chapter. In the case of past international injustices, as in colonialism, the “who” and the “whom” becomes philosophically knotty because individuals weren’t at the scene of the injustice. How, for instance, is making someone today pay for the injustice of another person from the past not unfair? If there is no one to bear the duty of repair (and conversely no one to be able to receive it) how are reparations possible? We examined two strategies in response to this challenge. The first maintains a normative-individualistic morality and tries to show that people in the present are somehow personally complicit or affected by the past injustice, and therefore are the proper agents and claimants of reparative justice. The difficulty with this strategy is that the chain of events that tie the present morally to the past can be hard to establish. Moreover, there is the risk, in the attempt to connect the present to the past, that we change the subject from that of repairing a past injustice to remedying present injustice. That is, the question of reparations is evaded rather than addressed. The second strategy avoids trying to morally connect individuals across generations. Instead it takes the injustice to be the injustice of a collective or corporate actor (and the injured parties to be collective moral persons as well). Hence holding a nation responsible today for something it did in the nineteenth century is philosophically on a par with your holding me responsible for something I did in 2019. In both

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cases, both the nation and I are still around to be held accountable as moral agents and to make amends for our past actions. The challenge for this collectivist strategy is that the idea of collective moral agency, especially as it applies to highly complex social entities like nations and states, is not a position that enjoys philosophical consensus. The success of the collectivist strategy turns then on how this ongoing philosophical debate on collective moral agency pans out. We also asked whether reparations are necessary. If the parties in reparations demands are also parties that have present obligations to each other, why are reparations necessary? I suggested that it is because: the past wrong itself matters, that the past can haunt the present, and that recognizing a past violation can supplement arguments for action that are based on concerns of present justice. On this last, we need all the powers of persuasion we can get a hold of to move people to do the right thing. Couching a reason for action in terms of what we owe to others because of what we have wrongly done to them can be a powerful motivation and add to the arsenal of arguments for justice.

STUDY QUESTIONS 1 Is the idea of reparations for a past injustice fundamentally unfair? 2 Can individuals in the preset be held responsible for injustices committed by their predecessors? 3 Does it make sense to hold a group or collective morally responsible? Does a nation or a state qualify as a group agent in this sense? 4 Even if nations are the sort of collective entity that can be held to account for a past injustice, doesn’t the burden of reparation still trickle down to the individual members of a nation who themselves did not commit the injustice. Is this fair? 5 Are reparations necessary? If we already have forward-looking principles of global justice, and their realization will result in an ideally just world, why should the past msatter?

NOTE 1 See: https://www.bbc.com/news/world-asia-india-33618621

REFERENCES Derrick Darby, “Reparations and Racial Inequality” (2010b) Bernard Boxill, “Black Reparations” (2010b). David Miller, “Inheriting Responsibilities”, in National Responsibility and Global Justice (2007b). Jeremy Waldron, “Superseding Historic Injustice” (1992b). Janna Thompson, Taking Responsibility for the Past: Reparations and Historical Injustice (2002b).

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FURTHER READING Goran Collste’s accessible and illuminating survey engages the diversity of international reparative cases and challenges with detailed historical references (Collste 2015). Daniel Butt (2009) develops the idea of holding nations as responsible actors. Charles Mills provides a discussion of justice and colonialism and imperialism, and notes the relevance and primacy of global reparative justice (2020). Margaret Moore (2016) offers a critical survey of the different arguments for the injustice of colonialism. The edited volume Jon Miller and Rahul Kumar (2007) is a collective of interdisciplinary papers. This is one of the earlier contemporary collections on reparations and for this reason includes several agenda setting papers.

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conclusion Karl Marx famously grumbled that “Philosophers have hitherto only interpreted the world in various ways; the point is to change it” (Marx 1888). But to change the world, and Marx will not disagree, we must first interpret it correctly; that is, we must come to have a right understanding of the problems we want to solve. This is what global justice as a philosophical inquiry seeks to do. We gain a greater understanding of a problem of justice when we are able to identify the form of a solution to that problem. But clarification of a problem does not mean that we must see a plain and uncontroversial answer or solution to it. Even if answers elude us, we acquire insight when we come to have a better understanding of the nature of a problem, and the values and issues at stake and the trade-offs involved in responding in one way as opposed to another. When we realize that a problem is more complicated than at first meets the eye, that is clarity. The aim of a philosophical inquiry is more often that of illuminating and identifying the right questions and less that of providing the answer to a question. Although we adopted a problem-by-problem approach in this book, it should not be concluded that we are renouncing aspirations to a theory of global justice. In my view, the aim of a problems-based approach to global justice is still ultimately the construction or identification of a theory of global justice with which to better understand and change the world. One might wonder what purpose a theory of global justice would serve if we can address the problems of global justice one by one, as we have done in this book. There are at least three reasons why a theory of global justice should matter to us. First, a theory of global justice can coherently and systematically organize our judgments on a range of different issues of global justice. Are our substantive positions on, say, world poverty, human rights and military intervention consistent with each other? When our various moral judgments can be subsumed coherently within one theory, we gain greater confidence in our positions. Just as we construct or identify scientific theories in order to better understand, organize and explain our different observations, so a theory of justice allows us to organize and justify our various judgments about matters of justice coherently and systematically. Second, with a theory of justice in hand, we acquire principles for guiding us in difficult cases, cases where our intuitions or initial judgments are unclear or pull us in different directions. We know that racism is wrong. But what about race-based DOI: 10.4324/9780367821531-14

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affirmative action? This is a harder question whose proper understanding will require some background theory of justice. Or, to consider an example from global justice, how should we fairly distribute the burden of climate change mitigation? The world’s opinion on this is a mixed one. As we saw, a background theory of global justice can give us some purchase on this and similar hard questions. The third reason concerns specifically the notion of an ideal justice that some theories aspire to. A theory of ideal global justice offers a vision of what an ideally just world would look like. This picture of an ideal world is not without use. It can provide us with a target to aim at, and it provides a measure of how well or badly we are doing with respect to achieving justice. Moreover, a theory of ideal justice can alert us to potential moral blind spots. To invoke another parallel from science, just as a scientific theory derived or constructed from a series of observations can then have predictive powers with respect to future observations, so an ideal theory of justice constructed or derived from a series of moral judgments can go on to direct us to new cases of justice. So global justice, as a philosophical subject, can strive for a theory of global justice. But the ultimate proof of any theory of justice is in its elucidation of the real world problems we confront and its ability to point the way to new problems. A problemsbased approach to theory construction will begin with, and keep firmly in sight, the problems of the real world. Thus, although this is only the first step in the quest for something more systematic, I hope our study is able to affirm why global justice matters and how it can provide us with the method and tools for dealing with the problems of humanity.

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index Page numbers followed by n indicate notes. Archibugi, D. 149 Asian Values see human rights Beitz, C. 27, 29, 61–67 Bell, D.A. 86 Benatar, S. 174 Bentham, J. 8, 21n4, 63 Blake, M. 38–39, 112, 121 Blum, G. 107 Brock, G. 32, 56–57 Brown, G. W. 154, 158n1 Buchanan, A. 115–118 Butt, D. 138, 183 Caney, S. 27, 34, 136, 165 capabilities 13, 30–33, 34n4, 62, 161–163 Carens, J. 109–110 climate change: anthropogenic 132–133; and economic development 132–134; and future generations 144–145; see also climate change justice climate change justice: ability to pay principle 142–144; beneficiary pays principle 140–142; equal emission rights 135–136; polluter pays principle 136–140; social discount rate 144; subsistence versus luxury emissions 134 colonialism 178ff consequentialism 8, 12; see also utilitarianism cosmopolitanism 57–58, 148ff, 76; and citizenship 150–151; see also global democracy culture 73–74, 110–112, 115–117, 123–125; see also human rights; liberal multiculturalism

democracy see global democracy deontology 12–15, 18–19; see also Kantian ethics Dewey, J. 1 duty: negative versus positive 13–19, 160–161, 176, 187; see also imperfect and perfect duties egalitarianism 22–24; global 25ff; and luck 26–28, 37–38, 42; not global 37ff; and poverty 22, 42–43; of what 30–33 Emanuel, E.J. 170, 173n4 equality see egalitarianism Fabre, C. 107 Fanon, F. 179 Falk, R. 153 famine see world poverty Feinberg, J. 18 Freeman, S. 40 Frowe, H. 106 gender: and culture 83–84; and human rights 63–64, 66, 80–83 global democracy 148ff; and world citizenship 150–151; and world government 155–157 global egalitarianism see egalitarianism global health 159ff; and equality 162–164; as a human right 159–163; and pandemics 167–173; and social justice 164–167 global justice: as a distinct subject 3–4; as a normative inquiry 2–3; problems of 1, 4–5; why it matters 4–5 Godwin, W. 11, 53

204   ●index Goodin, R. 54, 156, 158n2 Gould, C. 148, 155 Griffin, J. 13, 63 Grotius, H. 62 Guerrero, A. 139 Gutmann, A. 154 Habermas, J. 50 Hassoun, N. 160 Held, D. 149–154 Held, V. 160 Hobbes, T. 17, 19–20 human rights 60ff, 73ff; and Asian Values 73, 78–79; consensus approach 63ff; institutional approach 64ff; versus intervention 70; and liberalism 68ff; moral approach 62ff; versus state sovereignty 74ff; and women’s rights 80ff Ignatieff, M. 50 immigration 108–113; and open borders 109–110; and right to restrict 110–112 imperfect and perfect duties 18, 103–104, 106n4 imperialism 74, 176, 178–180, 182; see also colonialism intervention 70, 99ff; as a duty 102–105; as a permission 100–102; and the Responsibility to Protect 102 Jagger, A. 21n8 justice and ethics 5 just war 87ff; justice after war (jus post bellum) 96ff; justice in war (jus in bello) 94ff; justice of war (jus ad bellum) 89ff; moral equality of combatants 97ff; terrorism 95–96; see also intervention

MacIntyre, A. 51 Marx, K. 192 McMahan, J. 97–98 Miller, D. 50, 55, 59, 111, 124, 138, 152–153, 183–184 Miller, R. 38 Mill, J.S. 8, 21n4 Mills, C. 191 Moellendorf, D. 6n2, 29, 96, 133, 136, 142, 144 Moore, M. 125, 179 Nagel, T. 39, 41, 46n1 Nardin, T. 107 nationalism 48ff; civic versus ethnic 50–51; and cosmopolitanism 57–58; liberal nationalism 49–51; national partiality 49–51, 168–169; and patriotism 48, 53–54; and vaccine nationalism 167ff; value of 51–52 normative versus empirical claims 2–3 Nussbaum, M. 13, 30–31, 34n4, 62, 151 Okin, S.M. 81, 83ff O’Neill, O. 18–19 pandemic see global health Parfit, D. 144–145 patriotism see nationalism Pattison, J. 103–104 Pogge, T. 6n2, 15–17, 19 poverty: and economic equality 22, 42–43; see also world poverty Prah Ruger, J. 160–161

Kant I. 18, 21n6, 104, 106n4, 122, 150, 158n1 Kantian ethics and justice 13, 18, 63, 121–122, 156 Khader, S. 86 Kleingeld, P. 158n1 Kymlicka, W. 50–52, 83, 111, 152–154

Rawls, J. 24ff, 27–32, 40, 42–45, 48, 55, 57, 65, 67, 68ff, 82, 88, 101, 142 Reidy, D. 47, 72 Renzo, M. 67, 98 reparations 124ff, 175ff; necessity of 187ff; possibility of 180ff; what is 176–177, 186–187 rights 12ff; basic rights 14–16; manifesto right 17; see also human rights Risse, M. 17, 35 Rodin, D. 96, 127 Rousseau, J.J. 19–20, 125–126, 156, 185

liberal multiculturalism 80, 83–89 libertarianism 13–18, 160–161, 176, 187–188 Locke, J. 19–20, 62, 120–121, 128 Luban, D. 101

Sangiovanni, A. 40–41 secession 113ff; as a primary right 115–117; as a remedial right only 117–119 Sen, A. 30–32

index Shue, H. 14ff, 134–135, 160 Simmons, A.J. 120–121 Singer, P. 8ff, 21n5 Smith, R. 50 social contract 19–20, 24ff, 29, 88, 121 state sovereignty 60–61, 64–65, 73ff, 90, 92, 126; instrumental reasons for 75; non-­instrumental reasons for 75–76; see also human rights Stilz, A. 121–122 sufficientarianism 32, 162–163 Sypnowich, C. 35 Tamir, Y. 50, 152 Taylor, C. 63, 82 territorial right 119ff; as a cultural right 123ff; as a functional right 121ff; as an institutional right 126ff; as a Lockean right 120ff; as a self-­determination right 125ff

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utilitarianism 8–11, 19, 24–25, 53–54, 142 Valentini, L. 35 Walzer, M. 76, 85n1, 88ff, 95ff, 100–101, 110–112 Weinstock, D. 155 Wellman, C. 112 Wolff, J. 160–161, 173n4 world poverty 7ff; deontological approach 12ff; duty-­based approach 18–19; and global egalitarianism 22, 42; libertarian approach 15–16; rights-­based approach 14–15; utilitarian approach 8–12; see also poverty Ypi, L. 126, 179