The Necessary Connection between Interna

The Necessary Connection between Internal and External State Legitimacy:

Concerns Regarding Intervention 1

INTRODUCTION

Internal and external legitimacy are generally treated as distinct within much political philosophy. Recently this view has been challenged. 2 Whereas the standard view allows for the

existence of a state that is internally illegitimate while, at the same time, it is externally legitimate (consistent with the Westphalian model), the challenging view makes this impossible. That is, any state that is internally illegitimate is necessarily externally illegitimate; any state that is externally illegitimate is necessarily internally illegitimate. While I will be providing a justification for the challenging view, it is not the primary purpose of this paper. Instead, the primary purpose of this paper is to address a concern recently raised by Allen Buchanan

regarding said challenging view. 3 Buchanan questioned whether or not the challenging view entails that any time a given

populace is justified in revolting that it is necessarily going to be the case that another state would be justified in intervening. The implication being that this would be problematic; that there are clearly times when revolution is morally justified but where military intervention is not.

Buchanan’s concern is that the challenging view of state legitimacy would justify more interventions than ought to be justified. Buchanan has essentially presented a reductio ad

absurdum argument to the challenging view.

In response I argue that, while it may be the case that there will be a prima facie justification for intervention in all of the cases where revolution is justified, this alone does not

1 I do not mean “necessary” here in the metaphysical sense. I concede that, for example, if there was only one state that it would not make sense to talk about the connection between internal and external legitimacy since external

legitimacy would be impossible. 2 For example, in their work, A Liberal Theory of International Justice (2009), Andrew Altman and Christopher

Heath Wellman defend a view that suggests that they are intimately related. 3 This occurred during the 2010 meeting of the Eastern APA.

entail that an excessive number of interventions will be justified. This is because such a prima facie justification rests on a failure to protect basic human rights. If the prima facie justification for revolution and intervention was to rest on human rights per se , then I concede that

Buchanan’s objection could be a strong one. Additionally, that there is a prima facie justification does not entail that intervention will, in fact, be justified. States must also consider

other factors (the likelihood of success, human costs, regional and world stability, etc.). For both of these reasons the reductio suggested by Buchanan fails.

In Section One I argue for a theory of state legitimacy that occasions the necessary connection between internal and external legitimacy. In Section Two I define what I have in mind when using the terms revolution and intervention. In Section Three I concede that, if there is a justification for violent revolution, there is also a prima facie justification for military intervention. I then argue that this entailment is not particularly problematic. In Section Four I consider objections to the two-tiered model of human rights on which my response to Buchanan depends.

SECTION ONE

1.1 State Legitimacy and the Minimal Justice Criterion

The problem posed by Buchanan depends on the claim that internal and external legitimacy are symmetrical. This is a claim that I defend. In this section I will argue in favor of this claim by demonstrating that internal and external legitimacy are grounded on one and the same criterion. I will refer to this criterion as the Minimum Justice Requirement. States that fail to fulfill this criterion do not have the right to rule nor do they enjoy sovereignty rights. Presumably, if states justifiably have the right to rule, then violent revolution is not going to be The problem posed by Buchanan depends on the claim that internal and external legitimacy are symmetrical. This is a claim that I defend. In this section I will argue in favor of this claim by demonstrating that internal and external legitimacy are grounded on one and the same criterion. I will refer to this criterion as the Minimum Justice Requirement. States that fail to fulfill this criterion do not have the right to rule nor do they enjoy sovereignty rights. Presumably, if states justifiably have the right to rule, then violent revolution is not going to be

I describe the theory of state legitimacy that I am defending as a human rights-based theory. It is the direct result of previous (partially successful) theories posited by John Rawls and then Allen Buchanan. Though I believe this theory is best supported by foundational liberal principles, it is not, necessarily, a liberal theory. Conceivably someone could defend this theory or something quite similar given independent commitments to human rights or perhaps even on consequentialist grounds. While I do believe that this theory is ultimately a justice-based theory,

I am referring to it as a human rights-based theory in order to distinguish it more clearly from

Buchanan’s.

This human rights-based theory demands that in order for a state to be legitimate it must fulfill the following condition:

The Minimal Justice Requirement: In order to be minimally legitimate (that is, in order to justifiably have states ’ rights—the right to rule and sovereignty rights), a state must be minimally just. Minimally just is to be understood as, not only refraining from violating, but also protecting basic human rights. This duty requires only that states be minimally efficacious where minimally efficacious is understood as providing or at least attempting to provide in some significant way.

This requirement is justified by a variation of Buchanan’s Robust Natural Duty of Justice (with regard to internal legitimacy) and what I call the Robust Teleological Duty of Justice (with regard to external legitimacy). The Minimal Justice Requirement evaluates states on how they act in order to determine legitimacy.

I am stipulating that a (contemporary) state is best defined as an enduring structure of basic political institutions which includes the roles to be filled by those who are members of the government. These basic political institutions include those institutions that create and I am stipulating that a (contemporary) state is best defined as an enduring structure of basic political institutions which includes the roles to be filled by those who are members of the government. These basic political institutions include those institutions that create and

1.2 Internal Legitimacy and the Right to Rule

The traditional question of state legitimacy has asked the question: How can a state’s claim to coercive authority be justified? This traditional question can also be framed as the internal question of state legitimacy. It asks whether the claimed authority of a state over its claimed jurisdiction and its populace is morally justified. The problem of internal legitimacy, then, is the problem of determining under what conditions a state would have what is frequently

referred to as ‘the right to rule.’ It is generally understood that states that are legitimate have the right to rule while states that are illegitimate do not (even if they maintain de facto power).

Buchanan has described this by writing, “…an entity has [internal] political legitimacy if and only if it is morally justified in wielding political power, where to wield political power is to attempt to exercise a monopoly, within a jurisdiction, in the making, application, and

enforcement of laws.” 5 This is a view that is consistent with my own and is generally accepted. It is worth noting Buchanan’s inclusion of the concept of a monopoly of power as well as having

4 Buchanan, “Political Legitimacy and Democracy,” Pp. 689-690. 5 Of course, philosophical anarchists will claim that no states are and/or could be legitimate and, therefore, no states

have and/or could have the right to rule. This is a debate I will not enter into within the confines of this paper.

power over a particular jurisdiction . Legitimate states not only have the right to rule over a given territory, they have the exclusive right to rule. This monopoly obviously comes into question when considering justifiable interventions. If states do not have an exclusive right to rule then it presumably becomes much easier to justify interventions.

Internal legitimacy, then, is a necessary (if not sufficient) condition for justifying

coercion. States claim to have the justified authority to coerce their subjects to comply — sometimes even to do what those subjects otherwise would not do. Certainly it is the case that states wield the de facto power to coerce. This coercion might include imprisonment, imposing

some sort of fine, or even banishment or death. 6 If any of these punishments or penalties for failures to comply is to have any hope of being morally justified, they must come from a

legitimate (as opposed to an illegitimate) state. This seems to be a fairly uncontroversial claim. 7 Of course, many different possibilities have been suggested for what criteria a state must

fulfill if it is to be internally legitimate; far too many for me to recapitulate them all here. I will, however, address two that are relevant to my own. I begin with the view recently posited by Andrew Altman and Christopher Heath Wellman. They write:

Our contention is that legitimacy rests on the ability and willingness of a state to adequately protect the human rights of its constituents and to respect the rights of all others. If a state adequately protects and respects human rights, then we will say that it successfully carries out the “requisite political functions.” That is, the state is doing the job that it needs to do in order to justify its coercive power and thereby be legitimate. This conception of legitimacy stands free of any particular account of which specific rights ground legitimacy. It holds only that there are some individual moral rights such

that any state that adequately protects and respects those rights is thereby legitimate. 8

6 I do leave room for the possibility that, even if a state is legitimate (that is, even if it justifiably wields coercive power), this, in itself, does not justify the use of any sort of coercion.

7 Again, I take it that even philosophical anarchists will accept this claim if only to then deny that any states are and/or could be legitimate.

8 Altman & Wellman, P. 3.

Altman and Wellman argue that states that either violate or fail to protect the human rights of their constituents or to respect the human rights of non-citizens (a.k.a. foreigners) are necessarily internally illegitimate; they do not have the right to rule. It is worth noting that this is consistent

with the view defended by Buchanan. 9 According to Buchanan:

[A] wielder of political power (the monopolistic making, application, and enforcement of laws in a territory) is legitimate (i.e., is morally justified in wielding political power) if

and only if it ( a ) does a credible job of protecting at least the most basic human rights of all those over whom it wields power, ( b ) provides this protection through processes, policies, and actions that themselves respect the most basic human rights, and ( c ) is not a usurper (i.e., does not come to wield political power by wrongly deposing a legitimate

wielder of political power.” 10

For the sake of this paper, I am focusing on ( a ) and ( b ). While I am sympathetic with ( c ), it does not fall within the scope of this particular inquiry.

I would like to point out that Buchanan limits his justification for internal legitimacy on the protection of “the most basic human rights” as opposed to human rights per se . In this regard

I align myself with Buchanan. This will be of some import later in the paper and will be discussed in significantly more detail. I would also like to point out that Buchanan (unlike Altman and Wellman) makes no mention of the duties that states have to non-citizens (e.g., foreigners) when it comes to human rights. In this regard, I align myself with Altman and Wellman who do posit such a provision. I will discuss this in more depth shortly.

1.3 The MJR and Internal Legitimacy

Why does the criterion that I have proposed justify the right to rule? Why should we accept that there is a pro tanto reason to comply with state directives given that the state is

9 See Buchanan, “Political Legitimacy and Democracy” (2002) and, Justice, Legitimacy, and Self-Determination (2004).

10 Buchanan, “Political Legitimacy and Democracy,” P. 703.

minimally just understood as not only refrain from violating (that is, respect), but must also protect the human rights of all persons? This requirement is grounded in a more expansive variation of the Robust Natural Duty of Justice. This variation falls out of a critique I will shortly raise against Buchanan’s conception of the Robust Natural Duty of Justice. Let me be clear that this requirement does not demand that states meet any particular level of success. Recall that states only need to be minimally efficacious in satisfying the MJR. Provided states make reasonable attempts to satisfy this condition, it will have been met. It seems unfair and possibly unjust to require that less fortunate states meet some particular level of success given some of the less pleasant contingent facts of the world.

As previously noted, Buchanan has argued that a wielder of political power must make a sincere effort to protect the basic human rights of those 11 over whom it wields power .

Traditionally, when it comes to issues regarding internal political legitimacy, it has been taken essentially as fact that the persons that matter are those who are directly subjected to the power of the state. I believe this to be an unjustified limitation. If human rights are special things that deserve special protections (as Buchanan claims) then what principled reason exists to limit the

Robust Natural Duty of Justice to only those persons within the states jurisdiction? 12 It is completely counter-intuitive to think that a state that consistently violates the rights of persons

whom it does not wield power over (e.g., non-subjects and non-residents) is, in fact, legitimate. It is possible that Buchanan might agree with me. However his theory does not indicate this to

be the case as he only references the rights of citizens.

Whether purposeful or an act of omission, Buchanan has argued that in order to be

internally legitimate a state must not violate its citizens ’ rights. He writes that a state, “does not

11 Buchanan, “Political Legitimacy and Democracy,” P. 703.

12 I concede there could be practical limitations which is why the MJR demands only that states be minimally efficacious.

violate its citizens rights, so long as it (a) does a credible job of protecting their basic human rights, (b) does so by processes and actions that do not violate their basic human rights, and (c) is not a usurper (i.e. does not come to wield political power by unjustly displacing an entity that is

politically legitimate) [emphasis mine]. 13 ” Buchanan neglects any discussion of the violation of non- subjects’ rights. If Buchanan is correct and the purpose of the state is to achieve justice,

then why does this concern stop at territorial borders? If states need to be concerned with the protection of rights in order to establish legitimacy, then what moral justification is there for

limiting this concern to persons only within the state’s jurisdiction? There is none. Barring extraordinary circumstances, violations of human rights are unjust and serve to delegitimize

political authorities.

Furthermore, there exists a prudential concern. If the state is engaging in acts that violate the rights of non-citizens then this could put the safety and stability of subjects at tremendous risk; they are now likely to be the victims of a retaliatory action. Such retaliation would likely result in their own basic rights being violated. Historical examples of this abound. This is a strong reason to accept that states which violate the rights of non-subjects do not justifiably wield coercive power. If the state is acting in such a way that it is putting you and your fellow subjects at risk via its rights-violating behavior, then how could it be legitimate? How is such a state protecting the most basic rights of the citizens? While Buchanan is explicitly committed to the idea that the purpose of the state is to achieve justice, I think he would be hard-pressed to deny that another primary goal of the state is to provide stability and security. Even if he were to deny this, he would be hard pressed to explain how stability is not a necessary condition for

13 Buchanan, “Political Legitimacy and Democracy,” P. 708.

achieving justice and why actions that threatened this stability (even if aimed exclusively at non- citizens) do not delegitimize the state.

The human rights-based theory of state legitimacy demands that states not only respect but protect the basic human rights of all humans; not just those of their subjects. This allows the theory to be a human rights-based theory proper (as opposed to a human rights-of-subjects-based theory). This move is not ad hoc since a duty to protect human rights seems to be a duty to protect human rights per se , not just the human rights of subjects. Why bother to refer to them as human rights at all if they are ultimately the rights of particular subjects and not all humans? As mentioned, I believe that this duty of states (to protect human rights) is founded upon a variation of the Robust Natural Duty of Justice. Given that persons have a duty to support just institutions the burden falls on my opponents to demonstrate how those states which violate the rights of non-citizens count as even minimally just institutions. These states may act justly towards their own subjects but that is not the same as being just per se . Of course, the questions remain: Why should one accept the Robust Natural Duty of Justice and how is it relevant to the MJR?

I cannot sufficiently defend why one ought to accept the Robust Natural Duty of Justice here without sacrificing attention to the primary thesis of this paper and so will leave it as a stipulation. However, I can indicate that I am persuaded by the justification that has already been offered by Buchanan. His argument depends upon the acceptance of a principle of equal

concern and respect for persons. 14

I can also take a moment to reiterate a brief motivation offered by Buchanan in the form of a reductio ad absurdum . Consider, for a moment, the denial of the Robust Natural Duty of Justice. Consider for a moment that we do not have an obligation to support just institutions or to create them where necessary. The implications entailed by such

14 See Buchanan’s, Justice, Legitimacy, and Self-Determination: International Relations and the Rule of Law (2004), especially Chapter 3.

a claim being true are so undesirable as to be absurd. This thought experiment will have to suffice, given the present task, as a sufficient reason for accepting the Robust Natural Duty of Justice. Having stipulated the Robust Natural Duty of Justice, what, then, is my argument for accepting the MJR as the condition for internal legitimacy? It can be laid out in the following way:

1. Every person has a moral obligation to help ensure that all persons have access to institutions that protect basic human rights (provided this does not entail a loss of equal or greater moral value). This requires supporting just institutions (or creating them where necessary).

2. Institutions that protect basic human rights are minimally just institutions. For this reason, the Robust Natural Duty of Justice is an obligation of justice. Every person has a moral obligation to help ensure that all persons have access to minimally just institutions.

3. If something is an obligation of justice, then no one has a right not to be coerced to fulfill it (when coercion is necessary).

4. Therefore, no one has a right not to be coerced to fulfill the Robust Natural Duty of Justice (when coercion is necessary for its fulfillment).

5. Fulfilling the Robust Natural Duty of Justice requires entities that attempt to exercise a monopoly in the making, application, and enforcement of laws.

6. Therefore, wielder s of political power violate no one’s rights simply by virtue of acting to ensure that subjects fulfill the Robust Natural Duty of Justice. 15

Conclusion 6, of course, leaves open the possibility that the wielder of political power’s use of coercion might violate its subje cts’ rights in some other way. This is the case even though the use of coercion does not itself violate their basic human rights so long as it is used to ensure that they do what they have a duty of justice to do. Thus we need the additional premise that:

7. In wielding political power to ensure that its subjects fulfill the Robust Natural Duty of

Justice, the wielder of political power does not violate its subjects’ rights, so long as it (a) does

a credible job of protecting basic human rights and (b) does so by processes and actions that do not violate basic human rights.

15 Buchanan, “Political Legitimacy and Democracy,” Pp. 707-708.

8. Therefore, a wielder of political power that satisfies conditions (a) and (b) does not violate the rights of its subjects. 16

As I have mentioned, one place where I differ from Buchanan can be found in condition (a). According to Buchanan, (a) requires that a state does a credible job of protecting at least the most

basic human rights of 17 all those over whom it wields power . Instead I am positing that (a) requires that a state does a credible job of protecting at least the most basic human rights more

generally, that is, of all humans. I believe that this is a necessary change given the content of the Robust Natural Duty of Justice. This duty requires that every person has a moral obligation to help ensure that all persons have access to institutions that protect their basic human rights (provided this does not entail a loss of equal or greater moral value).

This difference explains why subjects might be justified in non -compliance or even resistance despite the fact that the state protects their rights. The violations of the rights of non- subjects, given the Robust Natural Duty of Justice, entails that subjects do not have a duty to support that institution. Such a state is no longer minimally just in virtue of the rights violations of non-subjects. Furthermore, in the interest of being consistent with the Robust Duty of Natural Justice, it is not enough for states to respect the rights of non-subjects, they must protect them. That is, states that succeed in refraining from violating, but that still fail to do a credible job of protecting the human rights of non-subjects, are illegitimate and, therefore, do not justifiably wield the right to rule. Subjects of such states are under no obligation to accept directives from the state as entailing pro tanto reasons for compliance.

16 As previously noted, I am setting aside the concerns of Buchanan’s condition (c) in this paper that the state does

not unjustly displace a previously existing legitimate political entity. However, I believe it to be quite conceivable that such an usurpation would require violations of (b).

17 Buchanan, “Political Legitimacy and Democracy,” P. 703.

It might be argued that such a standard is too high. That it is too much to expect from states that they take steps to protect the human rights of non-subjects. This is likely due to pragmatic concerns. Taking steps to protect the human rights of non-subjects, it may be argued,

will take away from the state’s ability to protect the rights of its own subjects. The subjects of a given state are the ones that fund such protection (through taxation, volunteer service, etc.), so,

of course, it is only they who receive protection (rather than respect). Please note that I have not specified how states are supposed to protect human rights. It is true that a state can fulfill such a duty by offering funds, natural resources, troops, and the like. However, a state can also fulfill this duty by complying with international law and by supporting (or creating where necessary) just institutions —where this is to be understood as supporting those institutions that protect human rights en masse .

Some might anticipate that I am suggesting that the Robust Natural Duty of Justice also applies to states. I am n ot. States, as artifacts of human creation, cannot have ‘natural’ rights. They can, however, have other types of rights. My position is that states have a Robust Teleological Duty of Justice. I will discuss this in the context of external state legitimacy shortly. In the meantime, I will continue with my discussion regarding the internal concerns of state legitimacy, particularly with how my view can further be differentiated from Buchanan’s.

Another way that my view differs from Buchanan ’s is with regard to when persons are justified in not fulfilling the Robust Natural Duty of Justice. I believe that Buchanan’s criterion is too broad. Buchanan claims that I have a duty to help protect people’s rights provided that I am not “incurring any risk to myself or indeed any inconvenience or cost of any kind.” 18 P resumably it is Buchanan’s belief that we incur no risk, no inconvenience, or cost of any kind when we protect human rights. After all, as regular citizens (that is, as non-wielders of power),

18 Buchanan, “Political Legitimacy and Democracy,” P. 705.

we need only obey the law. Such a presumption is controversial, particularly among libertarians. To his credit, Buchanan does consider a possible libertarian objection, though he omits this much stronger one.

Buchanan considers that libertarians might object to his theory on the basis that the

obligation to help ensure that all persons have access to just institutions is “only a duty of charity, not justice.” 19

I believe that libertarians will, instead, object to his theory on the basis that there is a significant inconvenience and/or a significant cost to ensuring that all persons have access to just institutions even if this only requires that subjects comply with the law (particularly tax laws).

Assuming for the moment that libertarians are correct and that individual liberty is of the utmost value, then there is reason to believe that persons do incur a cost and/or inconvenience by obeying the law. Certainly many philosophical anarchists, if not libertarians, will have this inclination. Compliance with the law involves placing a limit on individual liberty and/or autonomy. Thus there is a problem with Buchanan’s construal given that he has claimed that any amount of risk, inconvenience or cost would satisfactorily expunge a person from this duty of justice. If this is in fact the case, then Buchanan’s theory has lost much of its force and, perhaps, appeal since virtually everyone would be justified in failing to fulfill the Robust Natural Duty of Justice . Thus, under Buchanan’s construal, the fact that a legitimate state orders us to do something no longer counts as a ‘weighty’ reason to comply; it just counts as some reason. My

position is that it is only when we must sacrifice something of equal or greater moral value that we are justified in not fulfilling this duty of justice. This change salvages the claim that directives from legitimate states are, in fact, pro tanto directives. Subjects need to have a

19 Buchanan, “Political Legitimacy and Democracy,” P. 706.

weighty moral reason not to comply, not just some reason that could include any relatively minor inconvenience and/or cost.

Assuming that my revisions are successful, we now have a solid justification for a state’s right to rule. Persons have a duty to support just institutions. This entails complying with the directives of legitimate states (which are minimally just) unless they have a weighty moral reason to do the contrary. States which meet the MJR are internally legitimate states; in order to justifiably claim the right to rule, states must protect the human rights of all persons.

1.4 External State Legitimacy and Sovereignty Rights

In addition to the internal concerns regarding state legitimacy, there are external concerns that must be addressed. External concerns relate to a states’ authority outside of (or on behalf of) the territory and subjects over which it claims jurisdiction. The external question of state legitimacy is directly tied to what I have referred to as state sovereignty rights.

Whether or not a given state justifiably claims these sovereignty rights depends upon whether or not it is a legitimate state. This is a relatively uncontroversial claim. Of course, as

far as the ‘real-world’ is concerned, it is more appropriate to say that these rights depend upon whether or not a given state is recognized as a legitimate state by other (presumably legitimate)

states. Regarding this concern, I think that it would be quite easy to defend the claim that states only ought to be recognized as legitimate when they are, in fact, legitimate. Certainly the burden of proof falls on those who disagree.

Until recently, the criterion for determining external state legitimacy was to be found in Article I of the Montevideo Convention of 1933; it is often referred to as the principle of effectivity. This principle states that: Any state that can effectively function as a state is, in fact,

a legitimate state and is entitled to state sovereignty rights. According to the Montevideo

Convention, in order to satisfy the principle of effectivity: “The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined

territory; (c) government; and (d) capacity to enter into relations with the other states.” 20 As I wrote above, such effectivity conditions serve to point out states from non-states, not legitimate

states from illegitimate states. More recently international law has supported the idea that there is and ought to be a limit to state sovereignty. This includes a limit to how a state may treat its own subjects and a limit to how a state can treat the subjects (or the property/resources) of another state without forfeiting its own sovereignty rights. Of this Buchanan writes:

According to the current or ‘modern’ criteria, there is an additional element: [(e)] in coming into being, an entity that claims to be a state must not have breached a (basic) rule of international law. At present, it is not clear how much of an additional constraint, if any, condition [(e)] represents. The dominant international legal opinion seems to be that in general entities that satisfy the traditional criteria, which are summarized under the

title ‘the principle of effectivity’ are independent states and should be recognized as such in international law. 21

There is becoming a recognized need for additional normative criteria to determine which states are to count as legitimate in this external sense and to, therefore, (justifiably) act as agents (that is, “a person of international law”) within the international system. Of course the recognition for this need is quite distinct from whether or not any significant action has been taken to amend this problem. Unfortunately, a clear distinction can be drawn between the ideals of international law and the actual circumstances of an imperfect world. However, even if it were the case that existent states perfectly fulfilled (a) – (e) there still remain significant normative concerns. Buchanan and I have argued that the addition of element (e) is far from sufficient for justifying

20 Montevideo Convention.

21 Buchanan, “Recognitional Legitimacy and the State System,” P. 50.

sovereignty rights; Altman and Wellman agree. Clearly, additional normative criteria are needed for states to justifiably claim sovereignty rights, that is, to for them to be externally legitimate.

This demand for additional normative criteria is not ad hoc . In fact, this is a claim that is consistent with much if not most Just War Theory. 22 For the moment, however, it is enough to

point out that political theorists such as Buchanan (as well as political agents) believe that additional normative criteria are necessary for determining external state legitimacy. 23 I

wholeheartedly agree. The status quo , while an improvement on the principle of effectivity, remains severely lacking in normative content given the rights and powers enjoyed by recognized states.

The normative concerns that arise within the context of external state legitimacy depend upon the role that states play on the international stage and the powers that they have traditionally been granted or have seized. For instance, states are generally regarded to have the right to territorial integrity, the right to control their borders and also the (exclusive) right to control the resources located within their borders. If we consider just one valuable and limited resource (such as crude oil), then we can easily see the real-world repercussions that hinge on a state’s legitimacy status. The need for additional normative criteria becomes clearer upon further

reflection on existent state sovereignty rights. According to A. John Simmons, “The rights claimed are minimally those that a state must

exercise if they are to retain effective control over their territories and populations in a world composed of numerous autonomous states.” 24 Particular state’s rights have been associated with

22 For the most obvious example see David Luban’s “Just War and Human Rights” (1980). 23 For an obvious example of a political agent who shares this view see Kofi Annan, “Human Rights and

Humanitarian Intervention in the Twenty- First Century” (2000). 24 Simmons, “On the Territorial Rights of States,” P. 300.

the more general right of state sovereignty. Traditionally, the right to state sovereignty has entailed:

1. The right to territorial integrity;

2. The right to noninterference in internal affairs (internal self-determination);

3. The power to make treaties, alliances, and trade agreements, thereby altering its juridical relations to other entities;

4. The right to make (just) war;

5. The right to promulgate, adjudicate, and enforce legal rules on those within its territory (subject to certain restrictions). 25

6. The right to limit entry into and exit from its territory.

7. The right “to control the use of land and resources within its territory….”

8. The right to 26 “define the rules of property….”

Given the significance of these rights, we can see the real-world import of questions regarding external state legitimacy. Of special interest to the inquiry at hand, of course, are the rights to territorial integrity, the right to non-interference in internal affairs, and the right to make just war. Before addressing these in any detail, however, something must be said about how we ought to determine which states do and which states do not justifiably enjoy these rights. That is, how do we determine which states are, in fact, externally legitimate? What additional criteria are necessary for state legitimacy in addition to (a) – (e) above?

As was the case with internal state legitimacy, this is a question that has garnered

numerous responses —too many to discuss within the confines of this paper. I will refer to only one particularly relevant possibility. This possibility is consistent with my own view and is that which is posited by Altman and Wellman. As was the case with internal legitimacy, they claim that:

To qualify as legitimate, a state must satisfactorily protect the human rights of its constituents and adequately respect the human rights of everyone else . One must guard

25 Buchanan, “Recognitional Legitimacy,” P. 49. 26 Copp, P. 4.

against underestimating the importance of the italicized portion of the preceding sentence. While it is common to place the greatest emphasis on how states treat their own citizens, a state cannot be legitimate unless it also respects the rights of foreigners.

Even if Saddam Hussein’s regime in the early 1990’s had flawlessly treated all Iraqis as free and equal citizens, for instance, it would still have become illegitimate for having invaded Kuwait. And, as a consequence, this counterfactual Iraq would not have had an

irreducible moral right to political self- 27 determination.”

States that engage in aggressive wars, for example, are externally illegitimate, since aggressive wars violate human rights. 28 Thus, it is necessary (even if not sufficient) that states refrain from

violating the human rights of foreigners (that is, the citizens of other states) if they are to have the right to political self-determination —one of the sovereignty rights mentioned above. In order to be externally legitimate states must protect the human rights of their citizens and respect the human rights of all others.

Additionally, states that violate the human rights of their own citizens, via genocide, for example, are also externally illegitimate —just as if they had violated the rights of non-citizens in another jurisdiction (say, in an aggressive war). This is the claim that is frequently used to justify so-called humanitarian intervention . Under Altman and Wellman’s construal, once a state engages in gross violations of human rights (of which genocide is a clear example) either against its own citizens or against foreigners, it is no longer recognized as legitimate and thus no longer maintains its sovereignty rights. In particular, the state no longer has the right to territorial integrity nor to political self-determination. According to Altman and Wellman, “[A] state’s right of self-determination depends on its ability and willingness to protect human rights; as a consequence, states that satisfactorily perform these functions —and only such states—enjoy

a moral r 29 ight to sovereignty.” This is a view to which I am quite sympathetic though my own

27 Altman & Wellman, P. 148. 28 Aggressive wars also violate other states’ right to territorial integrity (assuming they are legitimate). 29 Altman & Wellman, P. 78.

position is distinct. Please note that I have already suggested that citizens need not be compliant with state directives if their state fails to protect the human rights of non-citizens.

It is easy enough to imagine a state that fulfills the modern criteria (a) – (e) but is still quite obviously externally illegitimate due to how it treats its own citizens, how it treats non- citizens, or both. A paradigm case is Nazi Germany. Even before it began its aggressive war of occupation, Nazi Germany was an illegitimate state under this construal because of the genocide that it was engaging in against (many of) its own citizens. Furthermore, Nazi Germany was an illegitimate state when it engaged in an aggressive war with its neighbors (even more so when it committed further acts of genocide within occupied territory). This is an example that Altman and Wellman appeal to in there discussion of how we determine whether or not a state is providing sufficient protection of and respect for human rights. They ask:

So how does one decide whether or not a state provides adequate protection? Our suggestion borrows a phrase from international criminal law: protection is adequate if and only if a state neither perpetrates nor permits “widespread or systematic” violations of the human rights of person within its jurisdiction. Any state that perpetrates or permits such violations lacks a right of self-determination that would circumscribe the legitimate scope of international criminal jurisdiction. On account of its monstrous violations of human rights, Nazi Germany was an illegitimate state lacked any claim against the jurisdiction of the IMT. Moreover, German leaders were liable for perpetrating such atrocities, even when committed against persons within the territory of the Third Reich and quite apart

from the existence of any war nexus. 30

States that either violate or fail to protect the human rights of their constituents or to adequately respect the human rights of non-citizens (a.k.a. foreigners) are necessarily externally illegitimate; they do not have sovereignty rights. As I mentioned earlier I am sympathetic to Altman and

Wellman’s view but I am not in total agreement.

30 Altman & Wellman, P. 80.

Consider again the MJR; the obvious difference is that Altman and Wellman and I differ in that I believe states must protect the human rights of all persons (not their subjects only). I believe this for similar reasons to those given above with regard to internal legitimacy. The burden is on my opponent to show why there is a moral obligation to protect the human rights of citizens but only respect those of non-citizens given the obligation rests on human rights. Altman and Wellman and I also differ in that I place an emphasis on basic human rights and not human rights per se . I will say more on this distinction later in the paper. Of course, this leads to the question: How does the criterion that I have suggested justify sovereignty rights? Why are states that satisfy the MJR externally legitimate? In order to answer this question I must posit and then defend what I am calling the Robust Teleological Duty of Justice.

The Robust Teleological Duty of Justice depends on the assumption that a (if not the ) primary purpose of states is to advance justice. I take advancing justice to minimally include the protection of basic human rights. I do not believe this to be an unrealistic assumption. In fact, it has generally been taken for granted in contemporary political philosophy that a (if not the )

primary purpose of the state is, in fact, to provide and promote justice. 31 So, assuming that we accept justice as a primary goal of the state, how does this inform a theory of state legitimacy

when it comes to justifying sovereignty rights? Let me begin by positing the Robust Teleological Duty of Justice:

The Robust Teleological Duty of Justice:

Given their primary purpose is to provide and promote justice, each state has a duty to support (or create where necessary) just institutions (provided this does not entail a loss of equal or greater moral value) where justice is to be minimally understood as the protection of basic human rights.

31 If Rawls is correct in his famous claim that, “Justice is the first virtue of social institutions,” then we have good

reason for believing that the primary goal of the state is to exemplify (or to at least attempt to exemplify) this virtue. See, A Theory of Justice, P. 3.

Why should anyone accept the Robust Teleological Duty of Justice? My argument is quite simple: If states exist for the purpose of providing and promoting justice, then they can only achieve this goal if they support (or create where necessary) institutions that protect basic human rights. Therefore, states have a teleological duty to support minimally just institutions (including minimally just ‘meta-institutions’). As I have tried to make clear, this is not a moral duty, it is a teleological duty.

An additional argument is needed to demonstrate that there is a moral imperative for states to fulfill their purpose; an argument that demonstrates how created entities have a moral obligation to take reasonable steps to fulfill their purpose. I do not think this is an impossible task, though I will not pursue it here. I believe that the duty is sufficient even if ‘only’ teleological. It explains why states (and not just persons) have a duty to support just institutions where justice is to be understood (minimally) as the protection of basic human rights. One of the most successful ways that states can fulfill this duty is by supporting a (minimally just) international state system and/or other meta-institutions that protect human rights. For poorer countries, this might be the only way to fulfill this duty. Just as in the case with individual citizens where complying with state directives may be their only way to support just institutions, for some (particularly less powerful and/or less wealthy) states compliance with directives from said meta-institutions may be the only way they can be minimally efficacious when it comes to protecting basic human rights, particularly the basic human rights of non-subjects.

‘Rewarding’ states that protect human rights (within and without their claimed jurisdictions) with the advantages of recognition and withholding that ‘reward’ from those states that do not encourages behavior that moves the system closer to the goal of promoting justice understood (minimally) as protecting basic human rights. Tying recognition to the Robust

Teleological Duty of Justice provides an incentive for compliance with a morally plausible existing rule of international law (e.g., the rule against conducting aggressive wars). In a system that lacks enforcement mechanisms of the sorts that states have internally, this is an important consideration. Additionally (and more importantly), it provides a justification for why only states that protect the human rights of all persons justifiably claim sovereignty rights. One reason to believe this is the commitment some philosophers have that states cannot be externally

legitimate unless they are internally legitimate. 32 However, this is not the only reason why satisfying the MJR is necessary for external state legitimacy.

The recognition of minimally unjust states (states which do not protect basic human rights) as legitimate undermines the internal legitimacy of the state that is doing the recognizing. That is, by recognizing an illegitimate state as legitimate, the recognizing-state is, itself, failing to protect basic human rights. That is, states that recognize illegitimate states as legitimate fail to satisfy the MJR. States that recognize illegitimate states as legitimate are necessarily not protecting human rights. This is because recognition grants a minimally unjust state the protections that will allow it to continue to violate (or fail to protect) basic human rights. Given states must satisfy the MJR to be internally legitimate; this should continue to persuade those philosophers who believe that a necessary condition for a state to be externally legitimate is that it be internally legitimate.

The Robust Natural Duty of Justice together with the Robust Teleological Duty of Justice justifies the MJR as a necessary condition to be satisfied in order for a state to be externally legitimate. The Robust Natural Duty of Justice justifies the MJR as a necessary condition to be satisfied for a state to be internally legitimate. Thus, in order to be legitimate either internally or

32 Buchanan has made just such a claim in, “Recognitional Legitimacy and the State System.” See especially Pp.

56-59.

externally (in order to justifiably enjoy the right to rule or sovereignty rights), a state must satisfy one and the same criterion; it must satisfy the MJR; states must protect the basic human rights of subjects and non-subjects alike (or at least make reasonable attempts to do so).

1.5 The Necessary Connection between Internal and External State Legitimacy

The connection between internal and external state legitimacy has now been made clear. In order to be internally legitimate, states must fulfill the MJR. In order to be externally legitimate, states must also fulfill the MJR. Thus, internal and external state legitimacy rely on one and the same criterion. It is not that internal legitimacy depends upon external legitimacy, or that external legitimacy depends upon internal legitimacy; it is that they must coexist or not exist at all. If the criterion for internal state legitimacy has not been met, then necessarily the criterion for external state legitimacy has not been met. If the criterion for external state legitimacy has not been met, then necessarily the criterion for internal state legitimacy has not been met. In

addition to satisfying some people’s intuitions, I believe that this also adds a desirable simplicity.

Thus internal and external legitimacy remain necessarily connected. If a state is internally illegitimate because it fails to protect basic human rights (e.g., by engaging in ethnic cleansing), it is necessarily going to be externally illegitimate (for the same reason). If a state is externally illegitimate because it fails to protect basic human rights (e.g., by conducting an aggressive war) it is also going to be internally illegitimate (for the same reason). It is in this way that internal and external legitimacy are necessarily connected.