a liberal theory of international justice

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OAndrew Altman and Christopher Heath W e h a n 2009

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Bntish Library Cataloguing in Pubiication Data Data a d a b l e

Library of Congress Cataloging in Publication Data Aitman, Andrew, 195C

A liberal theory of international justice I Andrew Aitman and Christopher Heath Wellman.

P. Cm. Includes bibiiographid references and i n d a

ISBN 97-19-956441-5 1. International relations. 2. International law. 3. Justice. 4. International relations - Moral and e t h i d aspects.

I. Weilman, Christopher Heath. 11. Titie. JZ1308.A42 2009

341 .016~22 2008049479

Typeset by SPI Publisher Services, Pondicheny, India Printed on acid-free paper in Great Bntain

by the MPG Books Group, Bodrnin and b g ' s Lynn

ISBN 9780199564415

1 3 5 7 9 1 0 8 6 4 2

Co n ten ts

Acknowledgments

1. Introduction

2. Self-Determination and Democracy

3. Secession

4. International Criminal Law $

4 5. Armed Intervention and Political Assassination

6. International Distributive Justice

7. Immigration and Membership

8. Conclusion

Notes

References

Index

vii

Introduction

This book advances a theory of international justice. The theory is a iiberal one in that it places the individual and her rights at Center Stage and insists that political states are legitimate if they adequately protect the human rights of their constituents and respect the rights of ail others. It is not uncomrnon to insist that a state enjoys authority over its individual members if it satisfactorily protects their rights, but it is becoming increasingly controversial to suppose that any state has a moral right against the rest of the world to order its affairs as it Sees fit. In other words, while few doubt that a state may jus- titiably coerce its constituents when this coercion is necessary to adequately secure their human rights, thinkers increasingly defend a certain form of cosmopoiitanism, arguing that every state is under a duty to turn over some substantial portion of its sovereign powers to international institutions. In contrast, our theory holds that a legitimate state has a moral right of political self-deterrnination that not only grounds its authority over its own members, but also absolves it of any duty to alienate its sovereign powers to international arrangements. As long as a state adequately protects and respects human rights, it possesses such a right of self-determination. Moreover, we contend that this right of self-detennination is irreducibly coliective and so held by the group of persons who constitute the state. Our theory is thus quite distinctive insofar as it combines the orthodox liberal notion that the lives of individuals are what ultimately matter morally with the putatively anti-liberal idea of an

"J

B irreducibly collective right of self-governance. In the Course of exploring the implications of our theory, we address issues

of justice that arise in a world of politicaily independent, modern states. In particular, we seek to illuminate and answer questions relating to democracy, political self-determination, secession, international crirninal law, armed intervention, political assassination, global distributive justice, and immigration. Some of the views we defend run against the grain of current academic opinion. Here are some exarnples: there is no human right to democracy; separatist groups can be moraily entitled to secede from legitimate states; the fact that it is a matter of brute luck whether one is born in a wealthy state or a poorer one does not mean that economic inequalities across states must

2 A Liberal Theory of International Justzce

be minimized or even kept within certain limits; most existing states have no right against armed intervention; and it is morally permissible for a legitimate state to exclude all would-be immigrants.

There is another way in which this book runs against the grain. In recent years, the focus of scholarship on global affairs has been on the conditions leading to a decline in the power and independence of nation-states and on the consequences of that decline; the international System of independent states has often been treated as a dying one, soon to be consigned to the dustbin of history. Over a decade ago, Giorgio Agamben confidently expected the full completion of "the process of dissolution of the nation-state and of its sovereignty."' And notice as well that these days theorists often speak of ''global" rather than "international" justice and assume that globaiiiation spells the end of the sovereign state. The questions on which we focus, however, are ones that arise against the background of a global order of politically independent tat es.^ Although such a focus might seem outdated, the fact is that, unless there is some radical change in world affairs, the human population will continue to be divided into territorially distinct states exercising important sovereign powers and regulating their inter- action, to a certain extent at least, by means of international law. Accordingly, we agree with Ulrich Beck that "it is thoroughly misleading to assume that state sovereignty and globalization are irreconcilable with one another.'" More importantly fiom an ethical point of view, according to the account of political seif-determination we defend in this book, legitimate states would be morally entitled to retain their independence and sovereign powers even if there turned out to be important advantages to dismantling all existing states and dispersing the powers of sovereignty among various local, regional, and global levels of governance." Accordingly, even as movement toward such a cosmopolitan form of governance appears to be the trend of the future, questions will and should per- sist concerning the justice of relations that independent political states have with each other and with the individuals who live within or beyond their borders.

In this initial chapter, we Sketch the main ideas of our theory of international justice and present a Summary of each subsequent chapter. The detailed explication and defense of these ideas are found in those chapters. We begin here with the two main concepts fiom which contemporary discussions about international justice have been woven: human rights and sovereignty.

We understand human rights to be a subset of individual moral rights which are distinguished in terms of their connection to basic human interests or, better yet, human needs. Put succinctly, one might say that human rights are individual moral rights to the protections generaily needed against the standard and direct threats to leading a minimally decent human life in modern society. We cannot settle here the highly controversial and complex question of what constitutes a decent life, but we do Want to emphasize two points. First, in the

context of the contemporary human life, the threshold of deceiicv seeiiis to us to be reasonably well captured by Articles 3-20 and 25-26 of the Universal Declaration of Human Rights.j At any rate, these articles, preseiitiilg a range of civil, political, and economic rights, strike us as a good plaie to Start a discussion of what individual moral rights must be respected and protected tor human beings generally to have sufficient prospects for a decen~ life. Second, we do not allege that it would be strictly impossible for a victim of a human right_s vio!-tion ever t _ ~ !i~e 2 miniAmzLy h c m r ~ !ife: the rinhtc -W"" A n -- nnt L--b

provide logically necessary conditions for a decent life. Victims of torture and vicious racial persecution can, despite the enduring psychological and physical scars of their ordeal, still lead decent and even inspiring lives. Witness Nelson Mandela. We claim only that Articles 3-20 and 25-26 collectively constitute a list that is a reasonablefirst approximation of the protections that individuals generaily need against the standard and direct threats found in modern society to living a decent human life.6

A aucial premise of our overall argument is that human rights are connected to political legitimacy. The nature of the connection can be explained as follows. A key feature of states is that they employ coercion and, more generally, exercise ultimate decision-making power over a territorially based population on a wide range of matters. If a state possesses legitimaq, then it has the moral right to exercise such power and other agents have a duty to respect the decisions made in the exercise of that power.: The moral right to that power involves an internal and external dimension: it is a right to coerce the individual constituents of the state to comply with its duly authorized rules and regulations, and a right against outsiders, imposing upon them a duty to refiain from interfering with the state's decisions regarding its own constituents. But this exclusive right of a state to govern coercively and impose duties in the exercise of its decision-making power stands in need of justification. What, then, grounds legitimacy?

Our contention is that legitimacy rests on the ability and wiliingness of a state to adequately protect the human rights of its coiistituents and to respect the rights of all others. If a state adequately protects ancl respects human r igh t~ ,~ then we will say that it successfdy carries out the "requisite political functions." That is, the state is doing the job that it needs to do in order to justifY its coercive power and thereby be legitimate? This conception of legitimacy stands free of any particular account of which specific rights ground legitimacy. It holds oniy that there are some individual moral rights such that any state that adequately protects and respects those rights is therebv legitirnate. Put another way, there are certain individual rights that are the measure of political legitimacy. If this is correct - and it is a substantive normative question as to whether it is- then tliere is the further substantive moral question of whicli rights form

4 A Liberal Theory of International Justice

that measure. Our yudgment is that rights that are connected in the appropriate way to a decent human life are the rights that form the measure of political legitimacy. Simplify ing a bit, we can say that a state has earned legitimacy if it is willing and able (a) to protect its own members against "substantial and recur- rent threats""' to a decent human life - threats such as the arbitrary deprivation of life or liberty, ancl the infliction of torture - and (b) to refrain from imposing such threats on outsiders."

A s mezs lxes of po!itKd legitimacy, hurria~ rights ~ ! a o constrahts on the permissible exercise of power by states. This constraining function was central to the human rightc revolution that took place in international law after the end of World War 11. The rulings in the Nuremberg Trial, the adoption of the Universal Declaration by the General Assembly of the United Nations, and later legal and political developments called for a rethinking of the idea of state sovereignty. It was no longer reasonable - if it ever was - to think of sovereignty in terms of the Westphalian idea of the absolute dominion of a state over its territory and its members.I2 Thus, certain egregious human rights abuses, such as genocide, came to be seen as crimes that could be legitimately tried by international tribunals, regardless of the consent of the state in which the abuses took place and even if the state's criminal laws did not prohibit the abuses. What, then, is one to make of the concept of sovereignty?

Among the key ideas in contemporary t h i i g about sovereignty is that it is best understood not as a single power, but rather as a bundle of powers.13 One can point to five main sets of sovereign powers: (U) to make, enforce, and adjudicate valid legal rules within a defined territory; (b) to wage war in seif- defense; (C) to enter into binding treaties and agreements; (d) to be free from outside interference in ordering its legal, poiitical, and economic System and other aspects of its basic structure; and (e) to preserve its territorial integrity. The bundle approach surely iüuminates the different kinds of powers exercised by a modern state. However, it is possible to conceive of the different powers in the bundle as tied together by a more abstract power, narnely a state's power of seif-determination. Each power in the bundle constitutes a different way in which a state can exercise or protect its dominion over its affairs, so that it can determine what kind of state it is to be.

This is not to say that every de facto state has a right of seif-determination. To the contrary, a central thesis of our theory is that only a legitirnate state has a moral right of self-determination.14 Moreover, we hold that this right is isreduc- ible to the individual rights of the constituents of the state. The right is a group right: it belongs to the members of the state as a collective body, because it can only be exercised jointly by the members. The right is also irreducible in the following sense: even a legitimate state is a noncoiisensual form of association, and so one cannot simply say - as many iiberals are prone to do - that the

Introduction 5

self-determination of a legitirnate state just is the self-determjnation of each individual through his or her consent to the rule of the state. No modern state has garnered the morally meaningful consent from all, or even most, of its citizens. Accordingly, the state's right of self-deterrnination stands free from the individual rights of autonomy held by its citizens.

The idea that states can have an irreducible moral right to seif-determination has been derided as a "Hegelian myth by one prominent theorist of international jmtice.I5 This myt!! treats the statt- or t h~ugh it were u süper-Lmportant person and ascribes to it such a weighty moral significance that individual rights are properly sacrificed to the interests of the state. In our view, any understanding of the state in those terms is both incompatible with iiberalism and deeply misguided.

Liberalismdoes not simply hold that individuals have moral rights that restrict the legjtimate exercise of state power. More fundamentally, iiberalism rests on a position that has been called "value individualism:' narnely that the weal and woe of individuals is, ultimately, aii that matters moraiiy. We endorse value individualism as an important element of iiberalism. But we will argue that value individualism is consistent with recognizing a basic and irreducible moral right of seif-determination held by legitimate states. Moreover, our theory is not com- rnitted to any Hegeiian myth about the state. The state is not a person, much less a super-important one. The state is a territoriaiiy based population of politically organized persons. Most important, our theory rejects the idea that the rights of individuals are properly sacrificed to the interests of the state. Rather, a state's legitimacy, and so its right of self-determination, depends on its protecting and respecting the rights of individuals. Thus, very much contrary to the Hegeiian myth, the rights of states are morally subordinate to the rights of individuals. Individual rights not only place lirnits circurnscribing the rightful exercise of a state's powers of se l f -detedt ion , those rights also provide the normative considerations that ground a legitimate state's own right to seif-determjnation.

Our theory's account of the grounds of a state's right to seif-determina- .

tion has important implications for the question of which groups have a valid claim to constitute a state. A popular notion is that a group must share a thick set of cultural and historical ties. It must be a "nationn or something very much like a nation. Our theory rejects such a view. Any group can constitute a state, no matter how culturally heterogeneous and no matter how diver- gent the branches of the tree of human history from which its members have descended. As long as the group is willing and able to establish and maintain institutions that perform the requisite poiitical functions, it has a right to constitute a state with the powers of self-determination. The measure of a group's right io statehood is not the shared culture or ancestry of its members, but rather their ability and willingness to create a legitimate state.


An increasingly popular view is that the only form that a legitimate state can take is that of a democracy. This view is closely connected to the contention that there is a human right to democracy. We argue, to the contrary, that there is no human nght to democracy and that there is no bar, in principle, to a legitimate state having a form of nondemocratic rule. The measure of legitimacy is not democracy but adequate protection and respect for human rights, and democracy is best understood as a valuable means for securing s ~ c h pr~tection and respect.

In our account of political self-determination, the foUowing idea plays an important role: If an agent has a basic moral right to self-determination and makes a certain choice in the exercise of that right, then other agents have a deontological reason to respect that choice. When we speak of deontologi- cd reasons, we are referring to reasons that are not simply put in "the balance" and weighed along with other reasons in order to decide what ought to be done. Ratiier, such reasoiis have two nlain features. First, they demand a certain course of aaion because any contrary course wodd wrong someone. Second, they are "'exclusionary reasons" to not act on the overall balance of reasons in deciding what to do.16 Combining the two aspects gives us the following: they are reasons that (a) demand a particular course of action as the only action in the situation that avoids wronging someone and (b) man- date disregard for other considerations that would, absent the wrong, count as reasons for or against the action. An example will inustrate this idea of a deontological reason.

Suppose that Jane and Jack are typical parents of two young children. As part of theu right to self-determination, they are together entitied to raise their children as they see fit, within certain lirnits. Let us assume that Jane and Jack have neighbors who would do a better job when it Comes to making decisions about the education of Jane and Jack's children. It is not that Jane and Jack would be negligent. It is just that the neighbors know much more about education and would make better-informed decisions. Nonetheless, in our view, one should not say that this fact about the neighbors counts in favor of the conclusion that the neighbors are at liberty to override the decisions Jane and Jack make about the education of their children. Jane and Jack are (non- negiigently) exercising their parental dominion in making their decisions, and so there is a deontological reason to respea these decisions. The presence of a deontological reason means that if the neighbors ask themselves whether they should block some educational decision of Jane and Jack, then the action they take in response should not be diaated by the overaii balance of considerations that bear on their contemplated intervention. Rather, the neighbors should reason: "It wodd wrong Jane and Jack to interfere with their decision, and that is aii that counts in this situation."

We argue that the Same sort of answer - with an important qualification - is the proper one when it coines to decisions that legitimate states make that Fall witliin the scope of their right of self-determination. Not ail those decisioils will be morally optimal or even beyond serious moral crii.icism. But even if they could in practice be countermanded, the decisions shodd be respected in the Same way that Jane and Jack's (nonnegligent) decisions about their children's education shodd be respected. The balance of reasons should not dictate action

.. . in c c c ~ t r a ~ ~ e n t ; , ~ ~ af &e state's decisions, siid i: shüic! n ~ t Co so iii ~i&i to avuid wronging anyone. But wronging whom? The state? Our answer - and here is the quaiification - is that it would not be the state that is wronged It wodd be * inconsistent with our endorsement of value individualism to posit ha t the state is the wronged party, because the state is not an individual whose well-being or life ultimately matters moraiiy. Rather, the individual members o i the state are the ones whose iives matter, and they are the ones who wodd be wronged. It is the wrong to them that requires respea for the self-determination of their state.

In the remainder of this chapter, we summarize the main issues and arguments of the subsequent chapters, each of which addresses a distinct set of issues conneaed to a specific dirnension of international justice. By addressing these issues, we aim to elaborate on the meaning and justification of the two central theses of our theory: (a) a state is legitimate if, and only if, it adequately protects certain basic moral rights of its individual citizens and respects the basic moral rights of aU other agents17; and (b) a legitimate state has a basic moral right of poiitical self-determination that is irreducible to the individual rights of its members.

SELF-DETERMINATION AND DEMOCRACY

This chapter provides an initial articulation and defense of our theory of political self-determination and then appiies this theory to the contemporary debate over the noninstrumental value of democracy. Our defense begins by noting that an account of group self-determination is necessary to capture the inherent wrongs of colonialism and the forcible annexation of legitimate states. Transposing these insights to the iiterature surrounding the value of democracy, we argue that the inherent value of democratic rule cannot be grounded in individual rights but rather must be based on an irreducibly collective moral right of political self-determination. Thus, if the state chooses a nondemocratic form of govemance that can perform the requisite political functions, then no individual member who prefers democracy is thereby necessarily wronged.

8 A Liberal Theory of International Justice Introduction 9

SECESSION

Our account of political self-determination leads us to conclude that separatists may tor a right to secede as long as their group is both able and willing to perform the requisite political functions. Although statists recoil fi-om the conclusion that a group may be entitled to secede fi-om a perfectly legitimate state, and nationalists will object that we underestirnate the importance to statehood of a giutp'j shäied c' i~~irz! chäräcterktics, vJe z g i e &i,t i, group's nghts to politid self-determination should uitimately hinge strictly upon its political capacities. Many commentators wili object that our Standard for the right to secede is entirely too lax, but our theory does not entail any commitment horing secession. On the contrary, we are emphatically not fans of state-breaking. Just as one might defend the right to no-fault divorce without believing that more people should separate, we defend the nght to secede despite having no interest in a world populated with an increasing nurnber of smail, more homogeneous states.

INTERNATIONAL CRIMINAL LAW

We share the prevalent view that a system of international crirninal law is both desirable and in the process of being created. The development of such a system is especiaily important so that instances of widespread or systematic human rights abuses may be prosecuted before tribunals other than those of the state in which the abuses occurred. However, we reject the conventional arguments offered in support of such prosecutions. On the conventional arguments, international crirninal law justifiably gains jurisdiction in cases of widespread or systematic human rights abuses because the abuses have harmfui effects that spiü across borders into states other than the ones in which they were perpetrated. Refugee outflows, regional economic dislocation, and other cross-border effects provide the ground on which international jurisdiction can gain a foot- hold. But underlying this conventional argument is the rnistaken premise that a state's sovereignty protects it fiom unwanted international jurisdiction unless conduct occurring within the state has hannfui effects beyond it borders. This obsolete, Westphalian conception is insupportable. In contrast, on our conception of a state's right of self-deterrnination, any state in which widespread or systematic human rights violations are being perpetrated has no claim against the exercise of international criminal jurisdiction within its borders. Moreover, on our account, there is no need to restrict such jurisdiction to genocide, crimes against humanity, and other "supercnmes."A state with an ineffective legal system that failed to adequately protect the human rights of its citizens would be Open to international jurisdiction even for such "ordinaryn crimes as murder

2nd rape. Critics of international criminal law have leveled many charges, from wasteful spending to political bias, against international criminal tribunals. Some of the critics suggest that all such tribunals be abandoned and criminal justice be returned entirely to domestic jurisdiction. We argue against aban- doning the project of developing institutions of international crirninal justice and make the case that it is not unreasonable to hope that the International Criminal Court will one day become a reliable enforcer of some of the most hindamental human rights.

1 ARMED INTERVENTION AND POLITICAL ASSASSINATION

The use of armed force against one state by another state or by a group of states involves some of the most complex and urgent issues of international justice. In recent years, a consensus has begun to develop around the idea that such force is mordy perrnissible only if it is necessary to prevent or end massive human rights violations amounting to a "supreme humanitarian emergencyn We argue that this consensus should be abandoned in favor of a more permissive, two-pronged approach. Specifically, we suggest that armed intervention is mordy perrnissible when ( U ) the taget state is iüegitimate and (b) the risk to human rights is not disproportionate to the rights violations that one can reasonably expect to avert. We then consider a more targeted response to end human rights abuses: the assassination of leaders of grossly illegitimate regimes. Assassination seems to be murder, pure and simple, but we argue that it is not so. After sketching how a system of internationdy authorized assassination might work, we analyze its practical and moral drawbacks and find that the question of whether such a system would be mordy permissible is an Open one.

INTERNATIONAL DISTRIBUTIVE JUSTICE

An increasing number of theorists are coming to espouse what might be cded "egalitarian cosmopolitanism," the view that it is unjust for a person's life prospects to be substantidy affected by the country in which he or she happens to be bom. We reject this position. A reasonable egalitarian principle of distributive justice would not require the elimination of the effects of brute luck on the iives of individuals. Rather, it would demand the elimination of conditions, whatever their origin, that make the less advantaged vulnerable to exploitation and oppression at the hands of the more advantaged. It is perfectiy possible, even in today's increasingly globalized world, for different

10 A Liberal Theory o f International Justice

states to have very different levels of average wealth, without the less wealthy being vulnerable to oppression by the more wealthy. Despite resisting egalitarian cosmopolitanism, however, we do not defend anything like the Status quo. Among the many things seriously objectionable about the global economic System is the fact that the citizens of wealthy states fail to meet their minimal samaritan duties to assist the hundreds of miilions of people who live and die in absolute poverty.

IMMIGRATION AND MEMBERSHIP

Appealing to the moral value of fieedom of association, we defend a state's right to control immigration over its territorial borders. Just as an individual has a right to determine whom (if anyone) he or she would like to marry, a group of fellow citizens has a right to determine whom (if anyone) it would like to invite into its political community; and just as an individual's freedom of association entitles one to remain single, a state's fieedom of association entitles it to exclude all foreigners fiom its political community. We do not deny either the egalitarian claim that those of us in wealthy societies have stringent duties of global distributive justice or the libertarian contention that individuals have rights both to fieedom of movement and to control of their private property. Yet, we conclude that every legitimate state has the right to close its doors to all potential irnrnigrants, even to refugees seeking asylum from incompetent or corrupt political regimes that are either unable or unwilling to protect their citizens' basic moral rights. This is not to say that legitimate states have no duties whatsoever toward such refugees. States do have a duty to aid them, but it is a duty that can be discharged in a number of different ways.

Self-Determination and Democracy

In recent years, many thinkers have come to the conclusion that the traditional scope of a state's sovereign right to determine its affairs should be reduced quite substantially. Few people still think that a state has the right to treat its own members as it pleases, but, aside from a handful of advocates of a world government,' the generally accepted view is that each state should retain substantial and important powers within the scope of its right to political self- determination. At the Same time, many thinkers contend that any legitimate state must be a democracy. Such thinkers hold that only democratic governance is consistent with a state's right to govern its territory and to thereby impose duties of compliance on insiders and of noninterference on outsiders. These two concepts - political seif-determination and democracy - are at the Center of this chapter.

The chapter has two principal a&s. The first is to present and defend an account of the right to political self-determination. The second is to show that our account leads to a novel understanding of the value of democracy. These two aims are connected: the understanding of democracy that we develop demonstrates the power of our theory of self-determination to illuminate, in surprising ways, key issues in the field of international justice. Our account holds that the right of political self-determination is an irreducibly collective moral right held by legitimate states and groups that are willing and able to become legitimate states. Our understanding of democracy holds that the inherent value of democratic rule cannot be grounded in individual rights but rather must be based on an irreducibly collective moral right of political self-determination. In short, one cannot explain the noninstrumental value of democracy without accepting our view of self-determination.

The chapter has eight main Parts. In the first section, we introduce two principles of political self-determination, showing how they underwrite reasonable moral judgments pertaining to international affairs. The principles specify when groups have a basic moral right to political seif-determination. From the second to the fourth sections we argue that our two principles generate an understanding of the value of democracy that is both novel and superior to competing accounts. In the fifth section, we respond to the objection that


measure from the widespread acceptance of value individualism. However, it turns out that our principles of political self-detennination are consistent with value individualism. Moreover, the principles help explain what remains puzzling when viewed strictly from the perspective of individual rights: How can democracy have value that is more than simply instrumental? The answer lies, we think, in the collective right of poiitical self-determination and not in any appeal to individual rights such as the rights to autonomy and equai- ity or even in a supposed human right to democracy itself. Put another way, popular sovereignty is normatively prior to democracy and accounts for why democratic institutions must be respected, even if nondemocratic ones could do a better job.

Secession

- - =r

4 In the previous chapter, we developed an account of the right to political 2 self-determination and explored its implications for the value of democratic

governance. The account centered on the idea that a moral right of self- determination is held by groups that are willing and able to protect and respect human rights. We showed how that idea could cogently explain why legitimate states have a right against being forcibly annexed, and why colonized peoples have a right to their own politically independent, self-governing states. And we argued that our view of political self-determination could explain why forcibly dismantling a democracy wrongs the citizens, regardless of the consequences, whereas the rights to individual autonomy and equality could not explain the wrong involved in eiiminating democratic rule against the will of the people.

Nonetheless, our view of political self-determination raises many questions because it appears to extend the scope of the right of self-determination weli beyond colonized populations and existing legitimate states. Indeed, our account of politicai self-determination appears to give the right to groups occupying territory within the boundaries of legitimate states, as long as those groups are willing and able to perform the requisite political functions. Even those groups within a legitirnate state that have in no way been treated unjustly could, it seerns, invoke a right of self-determination to ground clairns to secede from their state. And that conclusion might strike many readers as, on its face, rather implausible.

Our account of poiiticai self-determination does, in fact, involve an unusually permissive stance on state-breaking and lead to that very conclusion. It is a conclusion fiom which we do not shrink. Thus, in this chapter, we argue that many groups not often recopized as having a right to poiiticai self-determination do have a right to secede and establish their own state. The first section sketches the opposing views of statists and nationalists on the issue of secession and explicates our position in relation to those views. The second sedion addresses criticisms fiequently leveled at the sort of position we take. The third section exarnines a potentiaiiy fatal objection to our argument for a prirnary right to secession, arising from d e n Buchanan's contention that the right to secession is inherently institutionai. Finally, in the last section we turn to the question of whether our account of the right to secession should be embodied in international law.

$1 4 /\ I.~l)c,riil 'l'lieory oj~lntcrnational Justice Secession 4 5

SECESSION AND SELF-DETERMINATION

There are some notable exceptions, tobe Sure, but most political theorists who cornment on state-breaking belong to either of two camps, which we might labe1 "statists" and "nationalists."' Statists deny that there can be any unilateral rights to secede grounded in self-determination because secession necessarily involves taking territory from an existing state. and legitimate states enjoy a privileged position of moral dorninion over their territory. The crucial point to appreciate, according to the statist, is that secessionist contests are conflicts over territory, so one cannot posit a secessionist right without thereby imply- ing that the state has no right to retain its territorial boundaries.

Most people are willing to concede that a state may forfeit a portion of its territory if it treats its citizens sufficiently unjustiy, but statists are quick to point out that this concession implies only a remedial right to secedc, a sec- ondary right to escape injustice. If a group had a right to secede grounded in self-determination, on the other hand, then (like a spouse in a jurisdiction which allows no-fault divorce) it need not suffer any abuse in order to qualify for a right to secede. And if a group has been in no way treated unjustly, then it is hard to See how the state couid have forfeited its sovereignty over any of its territory. Thus, statists reason that because (U) legitimate states are morally entitied to govern their territory and ( b ) states retain this claim unless their citizens become the victims of injustice, there can be no primary right to secede grounded in self-determination. There can at most be a remedial right to secede in order to escape injustice.

Nationalists tend to differ from statists in part because they place a higher premium on group self-determination, but, as we will See, also because they deny that states retain a valid claim to their territorial integrity as long as they do not act unjustly. In order to appreciate the nationalist view, we must begin with the concept of a nation. A nation is understood as a group whose members share a substantial number of such cultural features as language, religion, values, traditions, dress, music, art, literature, and current or ances- tral territory. Moreover, the members of a nation identify with their shared cultural features: they think of their language, religion, values, and so on as defining a crucial part of their identity, an identity they consciously share with their CO-nationals. Finally, the members of a nation possess, or aspire to, some measure of political self-determination.

There is a great deal of diversity among those labeled "nationalists," but it is typical for them to emphasize both that (U) a nation's health - i.e., whether its culture is a flourishing and vibrant one - directly affects its members'

wdl-being and (b) political self-determination helps to promote a nation's liealth. Thus, nationalists have a special interest in political self-determiilation l>ccause they believe that individuals are best positioned to pursue reward- iiig projects and develop meaningful interpersonal relationships within the ~.ontext of a flourishing culture, and a nation's chances of supplying such ii liealthy cultural context depend largely upon its being politically free to order its own affairs.

!n response to st-tists who insist that national groups have no prirnary right to demand that their self-deterrnination be cashed out in the currency of their own sovereign nation-state, nationalists often point out that territorial boundaries are not only human constmctions which may perrnissibly be redrawn, but that these borders owe their current configuration to a series of violent conquests and morally dubious treaties. And if one agrees that states can be geographically realigned without violating any moral right or obligation and

aim to tliat eveii legitimate states typically have no unimpeachable historica1,l the particular pieces of land they occupy, one is unlikely to regard the statists' claims on behalf of existing legitimate states as indefeasible. In the end, then, nationalists tend tobe more accepting of state-breaking than are statists.

Although we are not entirely unsympathetic to the views of either statists or nationalists, our position on secession is importantly distinct from both. Notice first how our account of political self-determination goes Part of the way toward statism. In particdar, recall that in arguing that some coiiectivi- ties are entitled to political self-determination, we singled out those groups able and willing to perform the requisite political functions. Insofar as such groups indude legitimate states, but exclude rogue and failed states, our position is consistent with (indeed, it helps justify) the statist's contention that a legitimate state has a moral claim to its territory. It is important to recognize, though, that even if a state has the right to govern itself free from the interference of external parties, it does not automatically follow that the state has the right to deny political self-detennination to all groups within its territory.

To make this last point more concrete, consider the relation between Canada and the United States. The right of self-determination explains why Canadians need not defer to the United States when deciding how to govern Canada, but Canada as a whole cannot siiply invoke its daim against the United States in a dispute with an internal province like Quebec. Imagine, for instance, that Canada is engaged in two conflicts, one with the United States, &ich threatens to forcibly annex it, and another with Quebec, which wants to secede. On our account of political self-deterrnination, because Canadians are able and wiUing to perform the requisite political functions over their territory, they can invoke a right of self-deterrnination to ground a claim against being unilaterdy annexed by

. I (% i\ 1 i l i < = l . r r l '171cory O/ Iirierirrrlional Justice

rhc ~ i i i ~ c d S~aies. !n other words, if the United States forcibly annexed Canada, this action would violate Canada's right to poiiiical seif-determination. However, Canada cannot siniply appeal to its rights to govern its own affairs without interference bv the United States to justify denying Quebec's bid for political divorce: Quebec rnight be ~riiling and able to perform the requisite politicai functions on its own. The Same ~noral logic that grounds CanadaS right of seif-deterrnination with respect to the United States also grounds QuebecS (potential) right to self- deterrnination with respect to Canada.

This is not to say that Canada necessarily has no claim to the territory in Quebec; the point is merely that whatever claim it has vis-a-vis Quebec cannot be grounded iii its right against outside interference. In oÜr view, a state can righltullv impose itself upon a separatist territory if and only ifthis imposition is required to secure the essential benefits of political society, that is, if it is necessary to perform the requisite political functions involved in protecting human rights. Thus, whether or not Quebec has a unilateral riglit to secede depends upon whether Quebec would be able and willing to secure the benefits of political society on its own. Were Quebec able and w i h g to perform the requisite political functions over its territory (and if the remainder state of Canada would also be left poiitically viable), then Canada's political coercion over Quebec would not be necessary to secure the relevant political benefits, and Canada as a whole would not be justified in forcibly denying Quebec's claim to political self-deterrnination.

A legitimate state's right to political seif-determination is, accordingly, qualified and limited by the right to secede of internal papulations that are able and willing to perforrn the requisite political functions, while the nght to secede is itself qualified by the condition that the remainder state must be able to a n - tinue to perform the requisite functions. Thus, statists are nght about a legitimate state's having a claim to its territory, but they are wrongto suppose that this daim necessarily prevails over aii others. As the preceding analysis indicates, a legitimate state can invoke its right of self-detennination to justify its territorial sovereignty vis-a-vis d external parties, but such a state must equdy recognize the rights to self-deterrnination of politicdy viable groups within its temtory.

It is not difficult to See why a nationalist would welcome our response to statism. Because we question the statist's contention that legitimate states need only avoid injustice in order to retain a right to territorial integrity, our view supports the nationalist's claim that nations may have a primary right to secede even frorn perfectly legitimate states. In particular, wherever a separatist nation can perform the requisite poiitical functions, the existing state has no justification for its nonconsensual coercion. In other words, when a nation is sufficiently large, wealthy, politically organiyxd, and territoridy contiwous so that it can secure for aii individuals in the territory the essential benefits of political

Secession 47

association, it has a right to secede and form its own state, as long as it can do so without jeopardizing the functioning of the state it leaves behind. Conversely, nations which lack the requisite political capabilities will not have avaiid claim to independence. This view entails that, even in those cases in which a nation has a right to secede, it will not be the importance of the nation's cultural self- determination which grounds its claim; rather, it will be the nation's political capabilities, in particular, its ability and willingness to establish and maintain institutions that adequately protect and respect human rights. Thus, considerations pertaining to the cultural features of a group that aspires to statehood do not get to the bottom of the matter. The fundamental variable will be the separatist group's ability and willingness to govern the contested territory in a rnanner that sufficiently protects human rights. Factors related to culture clearly do have a contingent empirical connection to the ability and willingness of a group to govern in such a ~ a y . ~ But to focus on culture is to miss what is mor- d y decisive in wnsidering whether a separatist group has a right to secede and to form its own state. Accordingly, it may wen be that most separatist groups are in fact motivated by nationalist aspirations, but those nations whose daims are legitimate will be justified in their daims by their political capabilities, not by their cultural attributes.

As should now be clear, our position is importantly distinct from either the statist or the nationalist view. It diverges from statism in denying that legitimate states have a right to retain their territorial boundaries as long as they do not treat their constituents unjustly, and it differs from the nationalist view by singling out a separatist group's political capacity, rather than its cultural char- actenstics, as the key feature which qualifies it for a primary right to secede. This position is a principled and systematic account of secession that appro- pnately values self-determination without implausibly denying the crucial moral importance of protecting and respecting human rights.

If we are correct that there is a primary right to secede grounded in a wllective right of political seif-determination, then there is no reason to suppose that poiitical divisions must occur neatly along the iines of existing administrative units. As Margaret Moore explains:

In many cases, national minorities are correct to point out that administrative boundaries frequently have no moral basis thernselves, or that they were often drawn in acwr- dance with a moral or political conception that is irrelevant in the current political situation, or drawn by the central state in order to facilitate assimilation of the minority or its wntrol by the dominant group. It is therefore hard to See why these boundanes should be cast in stone, as the only unit in which self-detennination can take place3

Extending Moore's point, we would add that a separatist group also need-not be contained within only one host state. Thus, not only might a mere portion


of Texas have the right to secede from the United States, a contiguous portion of Mexico might have a right to secede along with the separatist Texans. Or, more realistically, a contiguous group of Kurds might have a right to secede from Iraq, Iran, and Turkey to create a Single, newly Sovereign Kurdistan. Admittedly, there will be cases in which secession should occur along administrative lines, as when there are considerable political advantages to keeping the borders intact. And ensuring that the new states are politicdy viable will inevitably force secessionist groups to shape their new state territory in a way that includes some unionists and excludes some separatists. However, the goal should be for the states to include as many separatists and as few unionists as possible.

CRITICISMS OF A PRIMARY RIGHT OF SECESSION

Theorists have traditionally shied away from efforts to ground a primary right to secession in a group's fundamental right to politicai self-determination for fear that this approach is, at best, messy and, at worst, utterly confused. Critics often cite the argument given by Sir Ivor Jennings in this regard. Referring to Woodrow Wiison's advocacy of self-determination as a basis for dividing the territories and colonies of the defeated axis powers, Jennings writes: "On the surface [self-determination] seemed reasonable: let the people decide. It was in fact ridiculous because the people cannot decide until somebody decides who the people are." He proceeds to illustrate the allegedly "ridiculous" character of self-determination by examining the relation between United Kingdom and Ireland during the nineteenth century: "Some . . . said that Ireland ought to have Home Rule. Who was to decide that: the people of the United Kingdom . . . or the people of Ireland? Most Irish representatives in Parliament said that Ireland should decide. But why Ireland? Ireland was not necessariiy a political unit because it happened to be an island.'' Jennings goes on to point out that, aithough the majority in three Irish provinces wanted Home Rule, the majority in Ulster did not. So he concludes his reductio of the principle of self-determination: "If one really consults the people, the conclusion may be that in the town of Londonderry fifteen streets and a quarter and five isolated houses shall belong to the Republic of Ireland and the rest to the United Kingdom."

Wilson's own understanding of self-determination appears to have been rather hazy and unde~eloped.~ We certainly have no wish to defend it. But whatever force Jennings's argurnent has against certain understandings of the right of self-determination, it fails as a generai attack on the very idea of such a right. In order to See why, it is helpful to untangle two distinct arguments

Secession 49

that Jennings runs together. The first argument holds that thc prir~ciple of self- determination is afflicted by a .logicaily vicious regress. The second holds that its application leads to an unworkable fragmentation of political authority. We will examine each strand in turn.

The regress argument can be unpacked as follows. The principle of self- determination cannot be applied in order to determine political boundaries, unless one first decides what the boundaries are within which voting is to take place. But the determination of the bni.indaries within whirh voting is to take place is itself a determination of political boundaries. Accordingly one must either stipulate the voting boundaries or apply the principle of self- determination to determine what those boundaries are. Stipulation would be arbitrary from the perspective of the principle of self-determination, but the repeated application of the principle would just lead to a vicious regress because, with each application of the principle, we need to refer to a previous one to determine the boundaries within which a vote is to t&e place. The advocate of seif-detennination can stop the regress only by a declaration that a vote is to take place within certain arbitrarily stipulated boundaries.

Contrary to Jennings, it is possible to stop the regress in a nonarbitrary way that is consistent with the principle of self-determination. Harry Beran provides the key: "Let the separatist movement specify the area in which the plebiscite is to be held,"6.and then hold the vote to determine whether a majority in that area favors secession. This approach embodies the idea that, as Charles Beitz puts it, "the peopleshould decide who the people are."7 In other words, the inhabitants of the territory nominated by the secessionist movement determine through their voting whether they wish to constitute a distinct body politic. Of Course, the precise contours of the territory picked out by the separatists is arbitrary in some respects - for example, it will be arbitrary that any given border is not two inches to one side or the other. But more relevant is the fact that the boundaries wiü be chosen by the separatist group for the reason that there is some basis for believing that the population within those boundaries prefer to have their own state. That reason. is not an arbitrary one but rather fits quite comfortably with the principle of seif-determination.

However, here we are cohonted by another problein. What if there is a territoridy concentrated group within the territory nominated by the separatist movement that does not wish to be associated politicdy with the population of the territory as a whole? Beran spells out the answer with a recursive procedure, starting with the initiai separatist movement:

If there is a majority in the [separatist] territory as a whnle for secession, then the territorfs people may exercise its right of self-deterrnination and secede. But there may be people within this territory who do not wish to be part of the newly independent state. They could show, by majority vote within their territory, that this is so, and

50 ii Liberal Theory oflnternational Justice

then become independent in turn, or remain within the state from which the others wish to secede. This use of the majority principle may be continued until it is applied to a single community (i.e. a community which is not composed of a number of com- munities) to determine its political s tatu~.~

It 1s at this point that the second strand of Jennings's argument kicks in. It might seem that applying the recursive procedure has the potential to lead to the sort of conclusion that Jennings imagines in his Londonderry scenario, 2nd he C!PX!J tzkes S I C ~ I c011~!11sicn tc c~nstitllte a redgctie ef the principle of self-determination. A similar worry about Beran's recursive procedure is voiced by Margaiet Moore, who is a nationalist defender of the right of self-determination but a critic of Beran's view. Moore considers how Beran's procedure would have worked in Bosnia-Herzegovina in the early 1990s, at the onset of the breakup of Yugoslavia. She writes that due to the intennixture of various national groups - Slavic Muslims, Croats, and Serbs, among others, "[alny application of the principle of recursive secession .. .would not have resulted in a satisfactory Settlement, but would have involved a patchwork of enclaves or pockets of sovereign units throughout the rep~blic."~

Nonetheless, Beran's recursive procedure does avoid such hyper-balkanization d e n it is used in conjunction with the requirement that the secessionist population (and the remainder state) must be able adequately to protect the human rights of its constituents and must be committed to respecting the rights of all others. "Pockets of sovereign units" are unable to meet this human rights requirement.

However, Moore appears to reject our human rights requirement. She writes:

While a normatively acceptable nationalism would be committed to the basic d e s of procedural (legal) justice and respect for human rights, the exercise of self- determination does not hinge on a confident prediction that the minority nation (would-be secessionist unit) is cornmitted to respecting human nghts and the d e of law. Not only are such predictions somewhat speculative, and raise questions of the competence of judicial bodies or outside agencies to assess this . . . but it is not justified by the argument for the moral status of national identity.'O

We find Moore's reasoning here unpersuasive. The speculative nature of predictions about respect for, and protection of, rights does not go to the question of whether a given population has a moral right to secede. Rather, it goes to the questions of whether and how a right to secede should be translated into a legal norm, and which institutions ought to apply the norm. If highly reliable predictions about respect for human rights could be made by some identifi- able institution, then it would be difficult to See what ground Moore would have for ignoring them. She is herself committed to a view on which political legitimacy depends on respect for rights: "[Al legitimate state is secured by two tests. The main one is the teleological legitimacy test: a state is legitimate if it

Secession 5 1

upholds basic human rights and is governed democratically." " While we question the inclusion of democracy as a condition of legitimacy, we concur with Moore that upholding human rights Counts as such a condition. To ignore reliable predictions about whether a new, secessionist state would uphold rights, then, would have the effect of treating the legitimacy or illegitimacy of the new state as irrelevant to the question of whether the secessionist group has a right to form the state. That position does not seem plausible to us.

-Moore als^ conte~ds that makicg the right to secede contingent on the secessionist state upholding rights "is not justified by the argument for the moral status of national identity."12 And it might be correct that the grounds for the moral status of national identity, that is the reasons why it matters morally that nations be able to preserve and define who they are, cannot justify a human rights restriction on the right of secession. But it is a mistake to look for the justification there. Rather, the justification lies in the moral importance of human rights and the role that such rights play as a basis for political legitimacy. The rights requirement is justified because adequate protection of, and respect for, human rights is necessary for the legitimacy of any state. A secessionist state that fails to conform to the requirement will either lack legitimacy itself, for failure to respect or protect rights, or undermine the rump state's ability to respect or protect rights. The human rights requirement is a way of ensuring that secession does not result in a state - either the new state or the rump state - that lacks legitirnacy.

Another nationalist, David Miller, argues against Beran that "it is an illusion to think that by (repeatedly) applying the majority principle everyone can end up in the state they would ideaily like to be in. Instead, from any redrawing of boundaries, there are almost certain to be both gainers and losers, and to assess a proposed redrawing we need to estimate the gains and losses, not mereiy to count heads."13 This argurnent has some force against Beran's own position because he is a consent theorist who takes political legitimacy to r&t on the consent of the governed However, it lacks sirnilar force against our view, which explicitly recognizes that any method of drawing political boundaries will result in some people being members of states in which they would prefer not to have membership. As long as political states remain tenitorially rather than consensually defined (as they must be if they are satisfactorily to perform the functions that justify their coercive presence), then it will sirnply not be possible for everyone to enjoy com- plete discretion regarding their compatriots. Short of anarchism, every theory of the state will have the impliation that some proportion of a legitimate state's population is incorporated into their state in a nonvoluntary manner.14

Miller's contention that in order to assess a proposed redrawing of political boundaries, "we need to estimate the gains and losses, not merely to count heads," is half right. Merely counting heads is not enough because a group


(and whatever remainder state is left) also needs to be able to perform the requisite political hnctions before it can have a right of self-determination. But estimating gains and losses as a way to assign which groups are to be self- determining does not capture the deontological character of the principle of self-determination: if the group can adequately perform those functions, then it has a right of self-determination that does not hinge on any estimation of gains and losses. Miller himself explicitly avoids ascribing any "right" of self- determination, favoring i~stead the idea of thzt some nationa! groups hwe a "good claim" to self-determination.15 However, we think that "good claim" is too weak to capture the moral quality of the daim of populations to secede from a larger state - or to refuse to be annexed by a larger state. We will argue shortly that secession and the refusal to be annexed are two sides of the Same coin, and that such cases are best understood as involving a right of self- determination that is not simply a reflection of the calculation of gains and losses.

Critics might insist that we are begging the question by assuming that the relevant popdation for determining whether the majority is getting what it prefers is the popdation within the secessionist territory rather than the popdation of the entire state. The entire state is affected by the issue and so, the argurnent goes, the preferences of everyone in the state must be taken into account. Othenvise, even if the popdation in the secessionist territory were only a small fraction of the whole state's population, that small fraction could overnde the preference of a large overall majority against secession.

In order to See why we reject the above criticism, imagine that the vast majority of Germany wanted to annex (a much less popdous) Poland. It would not be defensible to just count up the (mostiy German) votes in favor of the annexation and the (mostiy Polish) votes against it, and then say that Germany's annexation is justified by seif-determination. The Germans are certainly affected by the issue; that is precisely why so many of them favor annexation! But their preferences cannot override the preferences of the Polish when it Comes to the question of whether Poland is to be annexed by Germany. Our contention is that the case of secession is morally syrnmetrical to the Germany-Poland annexation scenario. The preferences of the entire population cannot override the preferences of those in the wodd-be secessionist territory. But why not?

Our principles of political self-determination explain cases of both secession and annexation. The principle that every legitimate state has a right of political seif-determination explains why Germany cannot permissibly annex Poland, if the majority of the Polish do not favor such an arrangement, even suppos- ing that they are outvoted by the Germans. If the Polish do not consent to the annexation, then it is not that the preferences of the Germans are "outweighed."

Secession 5 3

More strongly, without Polish consent, the preferences of the Germans about annexing Poland simply do not count; they are irrelevant. That is the implica- tion of our deontological principle of political self-determination. Recall that the deontological character of the principle excludes as irrelevant certain considerations that would figure in a purely consequentialist, cost-benefit calculation. The satisfaction of the preferences of German citizens does not count in the determination of whether it is permissible for Germany to annex Poland. Similarly, in the case of secession, the relevant princip!e is that a g r i q that desires independent statehood and is willing and able to perform the requisite political hnctions has a right of political self-detennination, and that principle entails that the preferences of people outside the secessionist territory do not count in the determination of whether secession is permissible. Only the preferences of those within the territory are directly relevant. The larger state that contains the secessionist terntory has a right of self-determination based on the ability and willingness of its population to perfomi the requisite political fuiis- tions. But the popdation of the secessionist territory has the Same right if it too is willing and able to perform those sarne sorts of hnctions within its nar- rower borders. And just as Germany cannot legitimately annex Poland against the preferences of the Polish majority, neither could it hold on to, say, Bavaria against the preferences of the majority in that state.

It might be objected that our analysis of the Germany-Poland annexation scenario is flawed because there is a cmcial moral difference between extin- guishing the seif-determination of an already existing legitimate state and refusing to allow the self-detennination of a secessionist group within an existing legitimate state. Poland is an already existing legitimate state and to annex it without its consent is to extinguish its exercise of self-determination against the wiil of its citizens. In contrast, the inhabitants of a region within Gerrnany, say Bavaria, might have secessionist aspirations but they are already Part of a legitimate state, and it extinguishes no one's self-determination to refuse to allow it to secede.

It is true that self-determination is not extinguished by a refusal to ailow secession, but the issue is whether the right to self-determination is violated by such a refusal. If the rehsal to allow secession does not violate the right, then there must be some morally relevant difference between forcible annexation and the refusal to allow secession. Moreover, the difference must be such that it makes the cmci. cüfference as to whether a group has the right of self-detennination. So let us focus on the essential difference between the annexation and secession Scenarios: in the former case, the group to be annexed already has a legitirnate state of their own, while in the latter, the secessionist group - although willing und able to constitute its own legitimate state - is alreaciy part of some larger legitimate state. 1s the fact that a group is part of some larger legitimate state

54 A Liberal Theory of International Justicc

sufficieiit to disqu~ilif~ it from having a right to political self-deterrnination, pven if tlle group possesses all the otherfeatures that qunlifi a group for the right o f self-detenninatlonl

It is difficult to see why being part of an already existing legitimate state would be, in itseif, disquahfying. One might point out that secession can have destabilizing or other adverse effects on the remainder state, leaving it unable to meet the conditions of legitimacy. However, this point siiply notes an empiri- cd possibZq =U &es n ~ t g~ :G qtesticr. ~f v~hzt conditiens asqualify 2 group from possessing a right to political self-determination. Instead of dis- qualifying ali groups within existing legitimate states because of the empirical possibility of destabilizing or sirnilar effects, we should simply say that a secessionist group's right of self-determination depends on its independence not undermining the remainder state's abiiity to meet the conditions of legitimacy.

THE PRE-INSTITUTIONAL NATURE OF THE MORAL RIGHT T 0 SECEDE

In the Course of developing his moral theory of international law, AUen Buchanan contends that the right of secession is "inherently institutional." This contention means that One cannot first determine a pure, noninstitutional right to secede and then, as a separate task determine whether institutionalizing it makes sense."16 Consider the separatist movement in Chechnya. Buchanan explains:

[I] t might be thought that by moral reasoning we can determine whether the Chechens have a moral right to secede without raising the question of what would be a moraily justüiable legal rule regarding secession - that we can first settle the issue of whether the Chechens have a moral right to secede and then consider whether the principle according to which Chechen secession is moraily justified would be appropriate for incorporation into international law. This, however, is a mistake."

According to Buchanan, one cannot determine anything about a moral right of Chechens to secede by appealing to the logid implications of abstract principles of justice and right. Only after one has determined what the norms of intemational law ought io be regarding secession, can one then justifiably assert that the Chechens possess - or lack - a moral right to separate from Russia And to determine what the norrns of international law ought to be, one must pursue "institutional moral reasoning," in this case reasoning about (U) the proper goals of the institution of international law - for Buchanan, the goals of securing peace and protecting human rights, and (b) the kind of right to secession - if any - that would, in combination with other d e s of international law, serve those goals.

Secession 55

If Buchanan's view about the institutional nature of the right to secession is sound, then it calis into question the arguments we have made in favor of a primary right to secession. Those arguments have sought to show that there is a moral right of secession that is grounded in a deontological principle of collective self-determination, and the arguments have proceeded independ- ently of considerations regarding the institutions of international law and how a legal right of secession might - or might not - serve the goals of the law. In shcrt, we arped thzt there is a mord ri* of secessior. that is cormativel-j prior to, and independent of, whatever legal right to secession might be best for incorporation into international law. Buchanan is denying that there can be any such pre-legal right of secession. He is not saying that no group can have a moral right to secede, but rather that a moral right to secede is, as a conceptual matter, nothing other than the right of secession that would be found in a moraily defensible system of international law. If it turns out that the Chechens would have a legal right to secede under such a system, then they have a moral right to secede here and now.

Buchanan's argument for his view begins with the idea that the moral right to secession includes a right to (attempt to) form a legitimate state without the interference of other states (including the remainder state). If some pre-institutional account of the right, such as ours, were to say that a group possessed the right to secede under conditions C, D, and E (where those conditions do not involve international law), then the account wouid be

committed to holding that any group that satisfies those conditions also has this right, and hence that states ought to refrain from interfering with attempts to form new states that satisfy those conditions. But whether states should refiain from interfering.. .wiü depend, arnong other things, upon how states acting in that way will affect the international legal System and its effectiveness in helping to protect human rights and secure peace."

If such action would render the system ineffective, or counterproductive, in securing its proper goals, then states ought not to refi-ain from interference with secession attempts by groups meeting conditions C, D, and E. And if states are moraily free to interfere, then those groups do not in fact have a right to (attempt to) secede. That is Buchanan's reasoning, at any rate.

It cannot be reasonably denied that whether international law ought to incorporate a right of secession cannot be uitimately determined without taking acwunt of the impact of doing so on the effectiveness of the international legal system in protecting individual rights and securing global peace. But it fails to follow that "one cannot first determine a pure, noninstitutional right to secede and then, as a separate task determine whether institutionalizing it makes sense."19 It only foilows that the existente of such a pre-legal right to

A Liberal Theory of International Justice

secession is not the only relevant consideration in determining whether there should be a right of secession under international law. Buchanan is correct to claim that "whether states should refrain from interfering [with attempted secessions by groups meeting conditions C, D, and E] ... will depend, among other things, upon how states acting in that way will affect the international legal system and its effectiveness in helping to protect human rights and secure peace."'O But "among other things" is a crucial qualification, and Buchanan gives ns r.c gcod rezscn for thinking thzt z pre-!ega! right to secessir>n ir not arnong the other relevant considerations.

We are prepared to grant that if there were an utter incompatibility between securing global peace and human rights, on the one hand, and providing a legal right of secession, on the other, then the right of secession ought to give way. But that concession does not support Buchanan's claim that there is no pre-legal right of secession. Rather, the concession rests on an assessment of the relative values of peace, human rights, and the pre-legal right of xcession. The right of secession is justifiably sacrificed to peace and human rights, but something of real value has been given up, narnely, a certain measure of respect for the deontological principle of political self-detennination. It is one thing to agree that peace and human rights are of overriding importance and yet another to say that there is no pre-legal right of secession at aii. So the idea that any right of secession under international law should be tailored so as to be compatible with peace and human rights does not entail that there is no pre-legal right of secession.

Buchanan might contend that we have failed to appreciate the way in which the concept of secession is an essentially institutional one: " [SI ecessionists typically assert that they have a right to their own legitimate state, and a legitimate state is an institutionally-defined entity, an entity defined as having certain rights, powers, and immunity under international l a~ . "~ ' His claim here about the definition of the concept of a legitimate state needs to be exarnined in light of his account of legitimacy. In that account, Buchanan distinguishes two sorts of legitimacy: political and recognitional. The political form concerns whether a state "is morally justified in wielding political power."" The recognitional form concerns whether "a particular entity should or should not be recognized as a member in good standing of the system of states, with all of the rights, powers, liberties, and imrnunities that go along with that s t a t ~ s . ~ ' ~ It is clear that, on Buchanan's account, the concept of a politically legitimate state is not definitionaiiy linked to that of international law: if there were only one state in the world, that state could, in principle, be morally justified in wielding poiitical power. It is just as clear that recognitional legitimacy is conceptually tied to international law. So it might seem that, insofar as he is referring to recognitional legitimacy, Buchanan is right to say the separatist assertion of

Secession 5 7

a right to secede involves the idea that the group ought be granted the rights and powers of a legitimate state under international law. And if the concept of secession entails such a claim about international law, then the concept would seem to be institutional in just the way that Buchanan asserts it to be. But let us look at the matter more carefully.

Let us assurne, with Buchanan, that groups asserting right to secede typically claim that their new state should have recognitional legitimacy, as he understands such legitimacy. This claim that the separatists make is indeed conceptually tied to international law and means that the new state "should.. . be recognized as a member in good standing of the system of s t a t e~ , "~~ where the system is understood to be one regulated (to some significant degree) by international law. However, Buchanan is wrong to suggest that secessionists typically make the claim because the claim is logically entailed by ( a ) their assertion of a right to secede and (b) the meaning of the concept of secession. There is no such entailment because, even though the CGilCept of recognitional legitimacy refers to international law, the meaning of the concept of secession does not include any reference to international law or to any type of institution other than that of de facto statehood. Secession is the withdrawal of a territory from the jurisdictional boundaries of an existing ~ t a t e . ~ ~ Claiming the right to secede does not, as a conceptual matter, involve any claim about international law, including the clairn of recognitional legitimacy under international law.

Thus, there is no conceptual contradiction in a separatist group asserting, "We have a right to secede, but we make no claim to recognitional legitimacy." To see why there is no contradiction, consider a world in which there are states but no international law and everyone knows that the world is like that. In such a world, it would make no sense for a separatist group to claim that it should be recognized as a member in good standing of a system of states, because there is no such system. A claim to recognitional legitimacy would be ~ t i o s e . ~ ~ Yet, a separatist group could quite sensibly assert that it had a moral right of secession: any given assertion of that sort might be false, but it cannot be judged false or othenvise otiose simply because there is no international law. Accordingly, the assertion of a right to secede does not entail the claim to recognitional legitimacy. So why, then, do separatist movements typicdy make a claim to recognitional legitimacy? Because they live in a world with states and international law, and they want the protections and privileges that come with recognitional legitimacy in such a world. The claim to recognitional legitimacy is not due to any conceptual tie between secession and international law but rather due to the contingent fact that we live in a world with international law.

Buchanan makes the important point that secessionist groups claim, as part of their right of secession, a right not to be intedered with in their efforts to

5 8 A Liberal Theory of lnternational Justice Secession 59

ireate ;I new state. He suggests that this claim of-noninterference implies that the riglit of secession is inherently institutional. But the claim to a right of noninterference is also perfectly sensible in a world without international law. In a one-state world, a secessionist group could assert a right of noninterference against the existing state, and their assertion could be justifiable. Contrast that situation with a no-state world, where the idea of secession would have no purchase because a necessary condition for its applicability fails to obtain. Buchanan's argument against a pre-legal right of secession incorrectly t_oats the existence of international law as if it were like the existence of at least one state in the world, namely, as if it were a necessary condition for the applicability of the concept of secession. Yet, the concept of secession can be correctly applied in a world without international law, and so the argument against a pre-legal right of secession fails.

INTERNATIONAL LAW

Several of the foundational documents of modern international law declare the existence of a right to political self-deterrnination. For example, the Charter of the United Nations refers to the "the principle of equal rights and self-determination of pe~ples.''~' In a similar vein, the International Covenant on Economic, Social and Cultural Rights declares, "All peoples have the right of self-deterrnination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural de~elopment."~~ However, the apparently sweeping nature of such pronouncements has been accompanied by a highly restrictive interpretation of who enjoys the right. Under international law, the right has been restricted in practice to already existing sovereign states, to states subject to military occupation, and to overseas colonies (under the so-called saltwater rule). International law has not recognized the existence of the right of any territory to secede from a state within which it is located, even if the population in that territory has been subjected to serious and lasting injustices at the hands of the central government. Much further is the law from recognizing a primary right to secede.

Clearly, then, a virtual revolution in law would be needed to translate the moral right of secession that we have defended in this chapter into a right under international law. Moreover, the creation of a primary right to secede under international law would have potentidy vast repercussions for political affairs worldwide. Such repercussions are far bom mordy irrelevant. In fact, they implicate not only the coliective right to seif-deterrnination of many groups but also the human rights of countless individuals. Accordingiy, even if there is a primary right to secession, it does not foliow straightaway that international law ought

io iiicorporate it. Indeed, it does not even foilow that there ought to be any right io secession at all - remedial or primary - under international law, because the uiidesirable repercussions of even a restricted remedial right to secede might be sufficient to defeat any case for an international right of secession.

In our view, the argurnents that we have given about a primary moral right to secede do establish apro tanto argument - even if a highly abstraa one - for a primary right of secession under international law. If certain groups have a primary moral right to secede; then that fact establishes a good reason in favor of international law including the right arnong its norrns. On the other hand, because the empirical consequences for human rights of creating a prirnary legal right are potentidy so vast, the pro tanto argument does not by itself go far enough to justify even a tentative conclusion that there ought to be such a right. Instead, as we will argue, judgment should be suspended on any conclusion about a right to secede under international law untii those potential consequences are far less uncertain than they are at this Stage in the scholarly discussion of secession. Accordingly, as we see it, steadfast agnosticism is the most defensible attitude to take toward the question of whether international law ought to recognize a right to secession and, if so, what the scope of that right should be.

Allen Buchanan is the most prominent and cogent of contemporary theorists working on the question of the right of secession and international law. His view is that that a remedial right to secession should be recognized by international law but that no primary right of secession ought to be part of the law. Let us begin the case for our agnosticism with an examination of his arguments.

When the population in a territory prefers secession and has been subjected to serious and lasting injustices at the hands of the central government, Buchanan argues, then international law should give the population a right to secede. He contends that the lads current treatment of such a population cannot be defended:

The most obvious deficiency of existing international law regarding unilateral secession is the apparent arbitrariness of the restriction to classic decolonization. Presumably what justifies secession by overseas colonies of a metropolitan power is that the wlonized are subject to exploitation and unjust domination, not the fact that a body of saitwater separates them and their oppressors. But if this is so, then the narrow scope of the existing legal right of seif-determination is inappropriate. The existing right to secession as dewlonization appears to be justice-based, yet the idea that serious injustices can justify secession points to a more expansive right."

At the Same time, Buchanan is emphaticdy opposed to creating any legal right of secession in the absence of serious injustice. He makes his case against a primary legal right, and bolsters his case for a remedial right, by analyz- ing the types of incentives that international legal d e s create. In particular,


Buchanan argues in favor of remedial rights to secede on the basis of the beneficial incentives that institutionally protecting these rights will create, and he argues against primary rights on the basis of the "perverse" incentives that would be produced by international legal rules designed to protect such rights. On his view, a remedial-rights-only theory "gets the incentives right." He explains:

On the one hand, states that protect basic human rights and honor autonomy agreements are [under his theoryj immune to iegally sanctioned unilateral secession and entitled to international support for maintaining the full extent of their territorial integrity. On the other hand, if, as the theory prescribes, international law recognizes a unilateral right to secede as a remedy for serious and persisting injustices, states will have an incentive to act more ju~t ly.~

In other words, if intemational law recognizes rights to secede only in cases of injustice, then political leaders will have incentives to govern justly because they know both that ( U ) doing so wiü lead intemational society to support the state in any potential secessionist conflict and ( b ) sufficient injustices would lead intemational society to support the separatists.

As Buchanan explains it, the incentive structure would be altogether different if the international legal System also respected primary rights to secede. There would be incentives to avoid undertaking policies, such as the devolution of decision-making authority and Open imrnigration, which are potentially beneficial to the regions that might entertain secessionist plans and to society more broadly. Incentives would also be created for leaders to undertake unjust and discriminatory policies, such as deliberately keeping potential secessionist regions economically underdeveloped. Buchanan explains:

lf state leaders know that unilateral secession will be considered a right under international law for any group that can muster a majority in favor of it in any portion of their state, they will not be receptive to proposals for decentraiization. They will Mew decentrhtion as a first step toward secession, because creation of internal political units will provide the basis for future secessions by plebiscite.

International recognition of a plebiscitary unilateral right to secede would also create perverse incentives regarding both irnmigration and economic development. States that did not wish to risk losing part of their territory (which indudes virtually all of them) would have a strong reason for limiting immigration (or internal migration) that might result in the formation of a pro-secession majority in a portion of the state's territory. And to deter secession by existing internal political units, the state might even seek to prevent them from becoming sufficiently developed to be economically viable. (The Soviet Union's policy of dispersing major indus- tries among the republics was very iikely motivated at least in part by precisely this con~ideration.)~'

Secession 6 1

Thus, not only would leaders lose some of their inceiltive to povern justly - since being a just state no longer insulates one from the threat of secession - institutiondy protecting primary rights to secede would discour- age decentralization, Open irnmigration, and freedom of migration hecaiise each of these policies potentially nurtures separatism. In brief, there seems every reason to think that institutionaliy protecting only remedial rights to secede wiil create positive incentives, while protecting primary rights would e!iminate these he!ph! incentives and create additional detrimental ones.

Because political leaders are loath to lose territory and have unparalleled power to promote or destroy peace and justice, Buchanan is right to call atten- tion to these relatively neglected considerations. Moreover, we think that Buchanan accurately describes some of the incentives that could be attached to laws protecting remedial and primary rights to secede. For several reasons, however, we are not convincedthat these considerations are sufficiently weighty to conclude that there ought not to be a primary legal right to secede.

To begin, there are at least two reasons to think that the "perverse" incentives that Buchanan highlights rnight not be especialiy strong. 'The negative incentives to which Buchanan refers already exist, and so the operative question concerns the extent to which they would be magnified by interiiational law's recognition of primary rights to secede. We say this because, as Buchanan's reference to the former Soviet Union illustrates, even in the absence of any international legal right to secede, countries all too often disempower minority groups in an effort to preempt potential independence movements. Thus, as David Copp explains: "States that contain secessionist groups already have to worry about the possibility of secession. There is not now a legal right to secede, but there are secessionist movements all over the world, and the states facing these movements need somehow to deal with the threat to their territorial integrity." 32

Accordingly, political leaders already have incentives to avoid desirable policies such as decentralization, and so there would be reason to avoid creating legal rules that protect primary rights to secede only if we knew that such rules would substantially strengthen these incentives. But it is undear that one can be warranted in having much confidence about such a nuanced empirical matter. It is one thing to speculate about the kindof incentive a legal rule might create, but it is another thing to have justified confidence in the degree to wbich an existing incentive would be increased by this Same rule.

Additionally, historical evidence indicates that separatist sentiment is sometimes pacified, rather than enflamed, when minority groups are given additional political powers. John McGarry writes:

While states are often reluctant to decentralize, for fear it will promote secession, there is evidence that timely and genuine decentralization achieves exacdy the opposite effect. W i e Francoist centralization coincided with a significant increase


in Support for Basque separatism, the granting of autonomy to Basques in 1979 resulted in support for independence dropping from 36 per cent to 12 per cent. The long-tinie existente of the Canadian and Swiss federations also show that extensive decentralization is consistent with state ~ n i t y . ~ ~

On reflection, this observation should not be all that surprising, even if political leaders sometimes act contrary to the lesson that it teaches. After ail, it would be unreasonable tu deny that many formerly middle-of-the-road Chechens ~ Z V P hec~me rrdent separ~tists precisel;. because ef Mcsc~wS bruta! cam- paign tu queii the secessionist movement. Thus, leaders with some sense of what actuaily fuels separatist fires might recognize that they have no reason to avoid decentralization no matter what stand the international legal System takes on rights to political divorce.

Another factor to bear in mind is that, while Buchanan highlights the bad incentives that would be created by institutionaily proteaing primary rights to secede, there are also desirable incentives that would be produced and must be counted in the balance. For instance, arrning minority groups with an effective right to secede gives these groups political leverage, and this leverage in turn provides the central government with incentives not to mistreat these minority groups. In addition, instituting a legal right to secede and authorizing an appropriately imp;lrtial body to decide contested cases could be beneficial insofar as it would give the parties to a potential secessionist conflict an incentive to bring their problem to a forum "where the issues could be decided in a peaceful and orderly mariner."% Michael Freeman might be right when he obsewes, "The restnctive interpretation of the right to self-determination does not inhibit claims to self-determination, but it does inhibit their peaceful and just resolution, since it denies their legiti~nacy."~~

Accordingly, there are reasons for thinking that a right of secession broader than the remedial right envisioned by Buchanan and others might, on balance, have effects that are quite acceptable and even desirable. Our claim is not that we know, or even have sufficient evidence to believe, that these effects wouid predominate over the ones cited by Buchanan. But neither do we think that Buchanan has sufficient evidence to believe that the perverse incentives he cites would predominate. Moreover, given the very limited scope of what we can clairn to know about what would happen if international law were to treat secession differentiy, we cannot be justifiably confident that the existing legal norms law should be changed at ail.

Buchanan points to the arbitrariness of restricting the right of secession to cases of classic decolonization, but the refusal of international law to extend the right to other sorts of cases that also involve seriously unjust treatment of the population of a territory by a central government might not be arbitrary

Secession 63

lioin a consequentialist perspective that takes into account the very considerations that Buchanan emphasizes in his argument from incentives. Indeed, Donald Horowitz makes an incentive-based argument for maintaining the cxisting legal norms and rejecting legal recognition of a remedial right to ~ e c e d e . ~ ~

Horowitz's main concern is with ethnic conflict and the ways in which the recognition of a remedial right to secede could ignite or exacerbate such conflict. Secessionist movements are often fueled by struggles for political power among ethnic groups. Separatist groups are frequently ethnic minorities who Want their own state in which they can control the levers of power. If international law were to recognize a right to secession when a territorialiy based group is victimized by sufficiently serious injustices at the hand of the central government, then, Horowitz reasons, the law could operate as an incentive to the most extreme members of the group to engage in acts of violence designed to provoke the central government into a sufficiently egregious response. He contends that Sikh separatists in the Indian Punjab iuustrate this perverse incentive at ~ o r k . ~ ~

Horowitz also worries about the tendency of secession to generate irreden- tist claims and the conflict such claims cause. Because there will almost always be members of an ethnic group who find themselves on the wrong side of the border, the new separatist state and the rump state wili have an incentive to carve out a different territorial Settlement enabling them to encompass some or all their stranded ethnic brothers and sisters. Horowitz cites multiple instances of conflict arising from such reasons, including struggles in Kashmir, Bosnia, and E t h i ~ p i a . ~ ~

Horowitz is not insensible to the injustices from which separatist groups often suffer at the hand of central governments. But he contends that the problem shouid be addressed by working to build domestic political institutions that create incentives to moderate behavior by politicians. The perverse incentives of a remedial right to secession not only have the unfortunate tendency to intensify interethnic conflict; they also encourage ethnic minorities to pursue a strategy of exit rather than the more reasonable strategy aimed at redesigned domestic arrangements. Such is Horowitz's view.

Buchanan suggests that the chief disagreement between Horowitz and the proponents of a remedial right

concern[s] how the international community should invest its energies: in pressuring states to adopt internal refoms that obviate the need for secession or in doing that and also working for international legal recognition of a right to secede when internal reform is not forthcoming, so long as the right to secede is embedded in international institutions that will ensure that its exercise wiii not result in violations of the rights of min~rities.~


However, we think that the disagreement is not quite captured by describing it as one over how international energies ought to be invested. Horowitz is not simply arguing that devoting energy to internal reform efforts is more efficient than pursuing both internal reform and a legal right to secession, as though the main problem with a right to secession is that it diverts energy that could be more profitably invested in internal reform. Of Course, energy would be more profitably invested in internal reform, according to Horowitz, but to put it in that way understates his case against the right to secession. He is arguing that the problem with a legal right to secession is that it would generate very undesirable consequences, not simply that it would not be as good as pursuing the internal reform strategy alone. And the consequences would be very undesirable on account of the incentives for bad behavior that the legal right would create. For Horowitz a remedial right to secession gets the incentives badly wrong, in contrast to Buchanan, for whom the remedial right "gets the incentives right."40 SO this is not just a dispute over whether international institutions would be more efficient if they were to do A only, or to do A plus B. It is a dispute over whether doing B would lead to very bad consequences.

In our judgment, neither Buchanan nor Horowitz makes his case against the other. Each presents quite plausible hypotheses about the effects of the legal recognition of a remedial right to secession, but neither presents empirical evidence beyond citing a few cases of secession. No one should be surprised at the stalemate. The tmth is that, in the present state of scholarly knowledge, the views of both Buchanan and Horowitz are no better than educated guesses. This should not be understood as condemnation of their work. Educated guesswork is the best anyone can hope to do at this stage in the discussion of secession and international law. More importantly, educated guesswork is indispensable for moving the discussion to the point where something more weil founded than that guesswork becomes possible. Accordingly, we hold that, on the current state of the evidence, an agnostic stance is the most reasonable one to take toward the question of what the d e s of international law should be when it Comes to the matter of secession.

To review: While our arguments for a primary right to secession grounded in self-determination establish a pro tanto case for the conclusion that international law should be changed to protect the primary right, we refrain from drawing that condusion. The morally relevant empirical consequences of such a change are potentially of such great significance that even a tentative conclusion along such lines would need substantial support from an assessment of those consequences. In our judgment, though, that support is lacking because not enough is known, or reasonably believed, about the consequences of changing the existing law. These cognitive limits also require withholding

Secession 65

judgment on the proposal of Buchanan and others that international law be changed to incorporate a remedial right to secede.

It might seem disappointing to condude the chapter on such an agnostic note. However, it is important to keep in mind that the agnosticism for which we argue goes only to the question of whether international law ought to be changed. Such agnosticism is perfectly consistent with making judgments about whether part idar separatist groups have a moral right to secede. On the moral question, we have provided arguments aimed at showing that there is a primary moral right of secession and at formulating the conditions under which a population possesses that right. Defensible moral judgments about particular cases of secession are certainly possible even if it is necessary to withhold judgment about whether international law ought to be changed because the consequences of such a change are currentiy beyond the scope of what we can know or even believe with sufficient reason. To be sure, there are epistemic challenges in trying to determine whether a given group has a moral right of secession. One must determine whetl-ier the majority favors secession and is willing and able to form a legitimate state. One must also determine whether the remainder state would be able to perform the requisite political functions. These are empirical questions which, in a given case, might be diffcult to answer. Nonetheless, the diiculties are far more tractable than those presented by the international law questions, and, even if they cannot be resolved in all cases where a separatist movement exists, in some such cases there are surely warranted answers.

Moreover, once the relevant empirical questions are answered, the very abstract,pro tanto argument for a primary right of secession does not become irrelevant. To the contrary, the argument means that determining whether international law should have a right of secession, aiid if so, what its scope should be, is not simply a matter of weighing the costs and benefits of the various options. Because some groups have a moral right to secede, if international law is to justifiably deny the right to any such groups, then there must be sufficientiy compelling reasons that stem from the empirical consequences of recognizing the right.

Still, one might press the question, "Who is to decide whether a given separatist movement has a moral right to secede, i.e., whether the group is willing and able to form a legitimate state without leaving the remainder state unable to perform its essential functions?" Our answer is: any Person who is interested in making an accurate moral judgment about whether a given separatist group has a moral right to secede and who is prepared to ensure that the judgment is adequately informed by the empirical facts. Moral judgments in cases of secession are no different from moral judgments in any other situation: informed persons who desire to make accurate judgments are the

f>(> ;I 1,iberal Theory o f ~ n k r n a t i o n a ~ Justice Secession 67

ones to make them. There is no reason to think that the rnoral judgments about secession by such persons will be unanimous: informed people who are sincerely seeking the right answers will often disagree with one another. However, such disagreement is no different from what one finds with moral judgments about any other issue.

But suppose that the "Who decides?" question is asked about legal rights rather than rnoral ones. Who is to decide which groups in fact have a legal right to secession under international law? Ideally, such a judgment would be made by an impartial and authoritative institution. As yet, however, there is no such institution, leaving room for some disagreement among jurists and legal theorists over the exact contours of the right to secede under international law. In this respect, the international law of secession is no different from many other areas of international law which also lack an adjudicative body possessing ultimate authority to say what the law is in any case that comes before it. Whatever its exact contours, existing law is so rcstrictive that there are virtually no groups that can plausibly claim a right to secede. So the absence of an adjudicative body is not ali that important. However, if the law were to move in the direction of Buchanan's remedial right or, even further, toward a primary right of secession, then numerous live legal questions would emerge about whether a group has a right to secede. In such a situation, there would be many disagreements over what the law says and what legal rights particular states and secessionist groups possess. In light of the biases and passions that would invariably accompany such disagreements, it would be much better for there to be an institution that could authoritatively adjudicate the conflicting claims in a reasonably irnpartial manner. The existente of such an institution would increase the chances of a peaceful resolution of the conflicting claims, as opposed to a situation in which there is no authontative, reasonably irnpartial body before which the parties can bring their dairns.

But what institution could serve as such a body? David Copp - an advocate of a primary right of secession - has made an entirely reasonable proposal. He suggests that the jurisdiction of the International Court of Justice be expanded to include secessionist di~putes.~' The Court would adjudicate secessionist conflicts in much the same manner in which it presides over conflicts between sovereign states. Thus, Copp suggests that any separatist group should be per- rnitted to petition the Court, which would then determine if the group meets the minimal necessary conditions to qualify for a nght of secession, i.e., the group is territorially concentrated, sufficiently large that it could perform the requisite political fimctions, and so on." If the Court judged the group to be the type of party that might qualify for the right, then it would oversee a plebiscite in the proposed secessionist territory to ensure that a majority did indecd desire independence. Assuming that a majonty in fact favored separation, the

Court would then oversee the politicai divorce settlement to ensure that, as in rnarital divorce, both the separatists and the rump state are given a fair share of the collective debts and assets. Copp also proposes that the Court oversee a second plebiscite "to determine whether the group still wants to secede, given the negotiated terrns, and to determine whether it does in fact have a stable desire to form a ~ ta t e . "~~ If the majority's preference for divorce remains constant, then the parent state may make one last appeal to the Court (arguing, perhaps, "&ot the secessicnist grciip &d r,ot ictenc! ir. good fäith :G abidc b-y the Set- tlement").+' If this final appeal fails (or is not made), then the Court would oversee the separation, ensuring that the secessionists and the rump state both honor the separation agreement and generally respect each other's rights. Copp suggests that at this Stage, "[tlhe right of a secessionist society not to be interfered with in forming a state is of a piece with the right any state has not to be interfered with in governing its territory. So these nghts of secessionist societies are essentially the Same rights that international law now accords to states, and they would have the Same legal force as existing rights of existing ~tates."~~

Copp recognizes that major changes in international law would be required for anything like his proposal to be instituted. For one, a new treaty would be required to extend the jurisdiction of the International Court of Justice in the way required by the proposal. Then there are the formidable political obstacles in the way of persuading states to Open themselves to the possibility of losing portions of their territory against the will of the majority within the state. A treaty that is ratiiied by few, if any, states is worth little. Moreover, these Same daunting problems that face a treaty which numerous states would need to ratify .would also &ict any effort to establish a new international court that would hear cases involving secession. It cannot be said, then, that the prospects are good for the development of an authoritative and reasonably impartial body for adjudicating separatist claims. But given the potential of such a body to channel explosive disputes into peaceful processes, and the impressive Progress that international law has made since the end of World War 11, it is not wholly unreasonable to hope that the prospects will justifiably appear much brighter to future generations.

CONCLUSION

bur account of political klf-deterinination leads us to conclude that separatists possess a moral right to secede as long as they and their rump state are both able and willing to meet the conditions of legitimate govemance. Although statists recoil from the conclusion that a group may be morally entitled to secede from a perfectly legitimate state, and nationalists will object that


we underestimate the importance of a separatist group's distinctive cultural characteristics, it strikes us that a group's right to political self-deterrnination should hinge strictly upon its political capacities. And because existing states are not the only entities capable of performing the requisite political functions, some non-state entities may qualify for political self-determination.

It is important to recognize, however, that we are emphatically not fans of state-breaking. Just as one might defend the right to no-fault divorce without believing &at more people should separste, we defend the right to secede despite having no interest in a world with an increased number of small, more homogenous states. On the contrary, as next chapter's defense of the emerging institution of international crirninal law will make clear, we actu- ally favor larger and more ambitious international unions, both regional and global, which invariably dirninish the irnportance of territorial boundaries. In the end, then, our attitude toward secession is simdar to that of Serbia's Presideiit, Boris Tadic, who respoiided to Montenegro's vote to secede froin Serbia-Montenegro by saying, "I supported the presemation of a joint state, but as a democratic president of a democratic republic, I recognize the expression of the free will of the Montenegrin ~itizens."~

International Criminal Law

The right of political self-determination held by legitimate states has both inward- and outward-looking dimensions. Among its inward-looking dimensions is the state's right against persons within its territory who might desire to establish an independent state on Part of that territory. This aspect of the right of self-deterrnination is, as we saw in the previous chapter on secession, circumscribed by the right of a territorially-based population to form its own legitimate state out of a piece of the original state. Among the outward-looking dimensions of a state's right to self-determination is its right to establish and operate its own criminal justice system, free from the interference of international institutions or other states. In our theory of political self-determination, however, this right of internal sovereignty is not possessed by iiiegitimate states. In this chapter, we examine and elaborate upon the implications of our theory for important developments that have taken place in the field of international criminal law since the end of World War 11. Among those developments are: ( U ) the direct imposition by international law of criminal liabiiity on individuals'; ( b ) the development of core international crirninal norms, such as those prohibiting genocide and aimes against humanity, from whose jurisdictioii no state is permitted to remove itself 2; and (C) the establishment of international tribunals asserting criminal jurisdiction over actions within the state's territory, without the state's consent to the jurisdiction of the t r ib~na l .~ Each of these aspects of international criminal law involves the potential, or actual, preemption by international society of a state's own choices regarding matters of criminal justice within its territory. A key question, then, is: When and why is such preemption morally permissible?

In addressing this question, we critically examine the prevailing justification of international crirninal law and defend an alternative approach.We share the prevalent view that a system of such law is perrnissible and that its development over the past sixty years is justifiable and ought to be continued. However, we reject the conventional argurnents offered in support of this system, arguments that rely on the idea that the core international crirnes threaten international peace or security and harm humanity. Our alternative

Notes

C H A P T E R 1

1. Giorgio Agamben, "Beyond Human Rights:' p. 16. 2. We understand a state to be a politicdy-organized society. It has a Set of governing

institutions and a popuiation over which governance is exercised. Modern states are distinguished from other ways of organizing politics by their clairn to sovereignty over a demarcated territory, their unified System of law and governance within the territory, and their extensive regulation of social life by means of legd institutions and an administrative bureaucracy. See Christopher W. Morris, An Essay on the Modern State, pp. 3 W .

3. Ulrich Beck, Power in the Global Age, p. 90. Indeed, we think that David Held is e d y right when he writes: "In many aspects of politics and military affairs, states remain the primary actors in world affairs. To the extent that other actors have an impact . . . this tends to occur within a framework still formed and dorni- nated by states." David Held, Global Covenant: The Social Democratic Alternative to the Washington Consensus, p. 6.

4. We do not deny that certain transnational problems, such as climate change and environmental degradation, impose obligations even on a state that has a moral right of self-determination. Joining with other states in vanous regulatory regimes is one obvious way to begin to meet such obligations.

5. Universal Dechration of Human Rights, December 10, 1948, G.A. Res. 217 A (111), available at http://www.un.org/Overview/rights.html.

6. Accounts of human rights that comect them to a decent human life include AUen Buchanan, Jusiice, Legitimacy, and SelfDetennination, chap. 3, and James W. Nickel, Making Sense of Human Rights, chaps. 4 and 5. Theories that ground human rights in the conditions of human agency, rather than in the idea of a decent human life, can be found in James Gr iWs On Human Rights and Carol Gould's Globalizing Dernocracy and Human Rights.

We have explicitly omitted from our list of human rights those found in Article 2 1 of the Universal Dechration. The rights therein contained are rights of democratic participation. We argue in Chapter 2 of this book that there is no human right to democracy. Rather, we regard democracy as a very useful instrurnent, under a wide range of circumstances, for protecting human rights, but not as something to which there is a human right. However, it shouid also be noted that our list of human rights contains individual rights with important political dimensions, such as the rights of free expression and association, so that it would be misleading to say that the list includes no political rights.

No tes 195

7. Legitimacy can be ascribed either to states or to their governments. The legitimacy of states, however, is more fundamental because legitimate governments simply are the duly authorized governments of legitimate states.

8. We provisionally assume that there are legitimate states in the world today and that they include Sweden, Denmark, Norway, Germany, Canada, and New Zealand. Illegitimate states certainly include North Korea, Myanmar, and Zimbabwe, but in our judgment, the list is much longer and includes the majority of de facto states. We recognize, though, that reasonable people will disagree over how weil a state must pi-otect and i-espect fitiman rights in order to Count as legitimate.

9. The functional account of legitimacy is presented in detail by Christopher Heath Weilman in 1s There a Duty to Obqi the Law?

10. Nickel, Making Sense of Human Rights, p. 70. 11. For an additional qualification on the conditions of legitimacy, see n. 17. 12. On the Westphaiian System and its idea of sovereignty, See Chris Brown, Sovereignty,

Rights. and Justice, chap. 2. 13. A prominent Proponent of this approach is Allen Buchanan. See his Justice,

kgitimacy, and Self-Determination, pp. 56-7. 14. Cf. Charles Beitz, Political Theory and International Relations, pp. 80-1. 15. Fernando Teson, Humanitarian Intervention: An Inquiry into Law and Morality,

p. 57. We do not address the question of whether Hege1 himself endorsed the "Hegelian myth."

16. See the seminal discussion of exclusionary reasons in Joseph Raz, Practical Reason and Norms, pp. 35-48.

17. Included among the rights that must be respected is the right of self-determination held by other legitimate states and by certain secessionist groups. For sim- plicity of expression, we sometimes write that human rights are the rneasure of legitimacy, but we should be understood as referring also to the coilective right of political self-deterrnination that various groups might hoId.

C H A P T E R 2

1. rUthough some thinkers clairn that there has been a resurgence of the view that there can and should be a world government, the view remains marginal. See Carnpbeil Craig, "The Resurgent Idea of World Government," pp. 13-2.

2. Margaret Moore, "Introduction," p. 6. 3. Frantz Fanon, The Wretched of the Eurth, p. 148. 4. Fanon, The Wretched of the Earth, p. 245. We hasten to add that we disagree with

Fanon's assumption that the right of sovereignty inheres in a group in virtue of shared cultural values and practices. This assumption is accepted by many thinkers across the poiitical spectrum. We examine and criticize it in Chapter 3, where we advocate a view that is much closer to Habermas's "constitutional patriotism." See Juergen Habermas, Between Facts and Noms , p. 500.

Fanon is also weil known as an advocate of the use vio!.ence in the tight against colonial domination. In Chapter 5 we take up the general issue of whether the recourse to armed force can be justified as part of an effort to vindicrate the right of political self-determination.

5. Fanon, 7'he Wretched of the Earth, p. 101. 6. Ibid., P. 103 (ernphasis in original). 7. If no amount of restitution .will make it possible for a population to perform the

requisite functions, then the unavoidable conclusion is that it has no right of self- determination: An irreparable injustice has been done, but, even in exceptional cases. the right of self-deter~nination cannot be whoily ciivorced from the ability to adequately protect and respect human rights.

It will not always be an easy matter to draw the line between justified exceptions to the two principles, on the one hand, and cases in which a group simply does not have a right of political self-determination. But to say that it will be difficult to draw the line is only to say that there wiil be controversial cases in which the debates hinge largely on the particular details.

8. Admittedly, some of the judgments that we make in subsequent chapters about secession or armed intervention, for example, will not initially strike many readers as especiaiiy reasonable. But in those cases, the hope is that our account of self- determination wiil show why judgments that appear at first glance to be unreasonable are actuaiiy quite reasonable.

9. In cases such as those of failed states, we do not rule out the possibility that some kind of international trusteeship would be justified, or even obligatory, in order to help re-estabiish (or establish) the group's capacity to determine its own affairs in a mordy acceptable manner. In cases where the group simply could not acquire such a capacity, then it would need to break into subgroups that could do the job or affiliate with another state, so that the result would be rnorally acceptable.

10. Coloniaiism involves certain complicating factors from which we abstract in our analysis. For example, suppose that the COLONIZED are not willing and able to constitute a legitimate state and that neither IMPERIUM nor any other agent has done anything unjust to COLONIZED to render it incapable of perforrning the requisite political functions. in such a case, it might still be true that the distinct subpopulations within the COLONIZED are each willing and able to form their own legitimate states. If that is so, then each subpopulation has the moral right of independence from IMPERIUM. But it might also be that there are no such s~bpo~ulations. What then? Much depends on the empirical details, but we would not say that COLONIZED is thereby condernned to its political Subordination under IMPERIUM. Even if the COLONIZED lack a coilective right of self-determination, its members have an individual right to seek better proteaion of their human rights than IMPERIUM is providing, and perhaps one could even say that COLONIZED also has a coilective right against IMPERIUM that the latter relin- quish its political hold.

11 . In Chapter 3, we examine the implications of our principles of self-determination for the issue of secession.

4);. \V? should stress that, while someoiie might invoke this Waldron-iilspired objection, M'aldron himself suggests that he might not do so. In fact, on the possibiliv of a group voting to abandon democratic governance, he comments: "If the people voted to experimerit with a dictatorship, democratic principles might @ve us a reason to aüow thein to do so." Law and Disagreement, p. 255.

49. Also See Griffin, On Human Rights, pp. 242-52. Griffin argues that there is no valid inferential route from the rights of autonomy or liberty to a human right to democracy.

55. Güi ü i l d ~ i ~ i ~ d i i p of ba j i~ iightt aj pioirctions against standard ihreats is due to Henry Shue, Basic Rights, pp. 29-34.

51 . We agree with Griffin that "it is possible, in certain realistic, perhaps even actual historic, though not necessarily common, conditions, for there to be forms of government that do not violate any human rights but are not democratic." Griffin, On Human Rights, p. 249.

52. AUen Buchanan, Justice, Legitimacy and Self-Determination, pp. 142-3. 53. Chris Naticchia, "Recognition and Legitimacy: A Reply to Buchananen 54. Aüen Buchanan,Justice, Legitimacy and Self-Determination, p. 147. 55. Michael Hartney, "Some Confusions Concerning Collective Rights," p. 297. In

Justice, Legitimacy, iznd Self-Determination, Allen Buchanan defends a similar, if not ideiitical, position, which he c d s lusti6catory individualism." It asserts "that only the interests of individuals can serve as the ultimate ground of moral justification, that only individuals are moral subjects" (p. 414). And in a similar vein, Brian Barry writes that 'attributing rights to collectivities is incompatible with the individualist principle" and that "the only way of justifying any s&ial practice is by reference to the interests of those affected by it." See his "Seif-Government Revisited," pp. 249 and 253.

56. Charles R. Beiiz, Political Tkeory and International Relations, p. 81. 57. Stephen Darwall, "Two Kind of Respect," p. 45. D a d distinguishes rewgni-

tion respect from "appraisal respectn The latter "consists in an attitude of positive appraisal of [a] person either as a person or as engaged in some particular pursuitn (p. 38) . The key differente between the two forms of respect lies not in their objects but in the kind of attitude they consist in: recognition respect"consists in giving appropriate consideration or recognition to some feature of its object in deliberating about what to do" (p. 38), while appraisal respect consists in "a positive appraisal of a person or his character-related features [and] does not essentially involve any conception of how one's behavior toward that person is appropriately restricted" (p. 4 1 ) .

58. Stephen Darwall, "Respect and the Second-Person Standpoint," p. 44. 59. One might charge that we are begging the question by assuming that legitimste

states have a wllective nght of seif-determination. However, such a charge misin- terprets our aim in tliis section, which is not to argue directiy for a wllective right of self-determination, but rather to show how positing such a right is consistent with value individualism.

It follows from our account that, if a wlonized people were in fact unable to govern themselves and the colonial power imposed its d e only to protect human

rights and otherwise carry out the requisite political functions, then there would be no failure to accord recopnition respect. Such a failure is essentialiy a matter of failing to conform one's behavior to moral restrictions on permissible conduct that have their source in other persons, and, in the irnagined case, there would be no violation of such a restriction.

C H A P T E R 3

1. Among the exceptions wouid be Harry Beran, "A Liberal Theory of Secession," and David Gauthier, "Breaking Up: An Essay On Secession."

2. Empirical research has cast doubt on the idea that ethnic diversity within a state increases the probability that it will experience a civil war. See James D. Fearon and David D. Laitin, "Ethnicity, Insurgency, and Civil War." In our view, the crucial question is whether a popuiation - whatever its ethnic diversity - can estabiish resilient institutions of governance that reliably protect rights.

3. Margaret Moore, The Ethics of Nationalism, p. 159. 4. W. Ivor Jennings, The Approach to Self-Govemment, p. 56. 5. Margaret MacMillan, Paris 1919, pp. 11-13. 6 . Beran, "A Liberal Theory of Secession," p. 29. 7. Charles R. Beitz, Political Theory and International Relations, p. 106. 8 . Harry Beran, "A Democratic Theory of Political Seif-Determination for a New

World Order," pp. 38-9.0ne caveat concerning Beran's recursive procedure should be mentioned. The general idea of his procedure shouid be distinguished from any given wncrete political process - such as a referendum - that operationalizes the idea. The claim that a particular concrete process adequately or best operationalizes the idea is not true simply in virtue of the meaning of majority rule. We do not doubt that there are very strong reasons for thinking that, in most actual situations confronted by international politics, some kind of referendurn is the best way to operationalize the idea of majority preference. Stili, there wuid weil be exceptions due to such factors as a population's inadequate understanding of the options and biases that might be built into the actual language of a referendum.

9 . Moore, Ethics of Nationalum, p. 236. 10. Ibid., P. 2 15. 11. Ibid.,p.211. 12. I b i d . , ~ . 215. 13. David W e r , On Nationality, p. 112. 14. One rnight agree that political statesmust be territorially definedand still wonder

how we should detennine who is entitied to which territory. In answering this question, it is important to distinguish among three types of claims to territory: property, jurisdiction, and visitation. It might be that ( U ) a certain Japanese person, say, owns a piece of land in Jerusaiem, (b) the Israelis as a group are entitied to exercise political jurisdiction over the territory which includes Jerusaiem, and (C) the members of various religious groups have a moral claim to visit this city,

for instance. We take no stand in this chapter on property or visitation nghts, and our position on jurisdiction is straightforward: Other things being equal, those who occupy a territory enjoy jurisdictional rights over this land as long as they are able and willing to perform the requisite political functions. Theaother things being equai" clause is crucial, because a group might lack jurisdictional rights (even when it is politicaily viable) if it has unjustly come to occupy this land. When the Soviet Union forcibly annexed Lithuania and then moved masses of Soviet citizens into the territory, for instance, this action would not have entitled the new inhabitants to exercise jurisdiction over the iand in question, even iithey had subsequently established a legitimste political regime (which they did not). Of course, given that virtually every current population has conquered those who came before them, it is a notoriously difficult question as to whether there is something akin to a moral statute of limitations regarding territorial conquests (and if so, how long it takes to"kick in"). We will not wade into these waters here, but those interested in this question should See Jeremy Waldron, "Superceding Historic Injustice." For a more general discussion of territory, See Tarnar Meisels, Territorial Righ ts.

15. Miller, On Nationality, p. 81. 16. Aüen Buchanan, Justice, Jigitimacy, and Self-Determination, p. 27. 17. Ibid., P. 26. 18. Ibid., pp. 267. 19. Ibid., P. 27. 20. Ibid., pp. 2 6 7 (italics added). 21. Ibid., P. 24. 22. Ibid., P. 247. 23. Ibid., P. 261. 24. Ibid. 25. This definition does need some qualification, for exarnple, to Cover cases in which

a state has jurisdiction over a territory because the territory is a protectorate. But none of the qwüfications invokes introducing the concept of international law.

26. We use the somewhat imprecise term "otiose" because we wish avoid taking sides in the Strawson-Russell disagreement over the truth value of such sentences as "The present King of France is bald." See P. F. Strawson, "On Referring."

27. Charter of the United Nations, article 1, para. 2, available at http://www. un.org/aboutun/charter.

28. International Covenant on Economu, Social and Cultural Rights, 16 December 1966, G.A. Res. 2200 A (XXI), art. 1, para.1, available at http://www.unhchr.di/ htmi/menu3/b/a-cescr.htm

29. Buchanan, Justice, Jigitimacy, and Self-Determination, p. 339. 30. Ibid., P. 370. 31. Ibid., pp. 377-8. 32. David Copp, "International Law and Moraiity in the Theory of Secession," p. 243. 33. John McGarry,"'Orphans of Secession': National Pluraiism in Secessionist Regions

and Post-Secession States," pp. 2 2 M . Regarding Canada, McGarry adds: "Canada's cuirent troubles do not undermine this argument. To a considerable extent, the

Notes 201

rise in Support for Quebec separatism since the 1970s (:an be traced to a move away from the concept of bi-national partnership on the Part of English-speaking Canadians towards a view of Canada as a nation-state in which all individuals and provinces should be treated equally. Si$arly, the breakup of several Comrnunist multinational federations should not Cast any doubt on decentralization as a strategy, as these states were in fact highly centraiized."

34. Copp, "International Law and Moraiity," p. 243. 35. Michael Freeman, "The Prionty of Function Over Structure: A New Approach to

Secession," p. i5. 36. Donald L. Horowitz, 'A Right to Secede?" 37. Ibid., p. 58. 38. Ibid., pp. 51-6. 39. Aüen Buchanan, "Introduction," p. 5. 40. Buchanan, Justice, Lxgitimacy, and Self-Determination, p. 370. 41. Copp, "International Law and Moraiity." Our Summary here simplifies Copp's

proposai a bit, cutting out some of the steps. We do this for the sake of brevity, not because we think that some of Copp's recornmendations are unimportant.

42. On Copp's view, the Court would also have to judge that the separatists constitute a "society."

43. Copp, "International Law and Moraiity," p. 234. 44. Ibid., P. 235. 45. rbid. 46. Tadic's quote was reported in AP Online, May 23, 2006, available in Lxxis-Nexis

Academic.

C H A P T E R 4

1. International treaties relating to matters of crirninal justice typicaily obligate state parties to enact national laws, or other regulations, that implement the substance of the treaty. Thus, the convention on genocide provides that the parties "undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide." Convention on theprevention and Punishment of Genocide, December 9,1948, G.A. Res. 260 A (111), Article V, available at: http:llwww.unhchr.chIhtrnllmenu3/blp_genoci.htin Prior to World War 11, it was only through national law that international norms, such as those constituting the rules of war, could be enforced against individuals. The jurisprudence of the International Military Tribunal at Nuremberg made individuals accountable directly under international law for certain transgres- sions, quite apart from any potentially relevant national laws.

2. Norms from which derogation is not legally permitted are known as jus cogens norms in the literature of international law.

3. We will describe a state as not consenting to the jurisdiction of a particular tribunal when it has not entered into a treaty or other agreement that specificaily author-

a liberal theory of international justice

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