Original Positions, Individual Agency and Human Rights

The Law of Peoples imagines a two-tiered approach to determining just global institutions. First, there is the original Original Position, the model against which we can assess domestic laws and institutions. It directs the structure of the liberal democratic states, in which Rawls is mainly interested. It is his attempt to apply this theory to an international context that leads him to attribute special moral status to states as actors. Both the domestic and international applications suggest that what is primarily important is devising institutions that regulate behaviour between agents and promote the most freedom for all of them. On the domestic level, the agents take the form of individual members, who collectively comprise the state for which the institutions are devised. On the international level, the agents are no longer individuals, but states (Reference Rawls1999a: 82–83), and Rawls's reason for limiting international agency to states is only slightly compatible with a concern for individuals. At the global level, he allows only decent states—those that allow true meaningful participation in political life, either as part of a consultation hierarchy or a liberal democratic system—to participate in the Original Position (Rawls, Reference Rawls1999a: 63). Once assured that the domestic situation of the states is sufficiently representative, Rawls focuses on states and their participation in the deliberative process to determine which laws and institutions are fair to regulate international relations (Reference Rawls1999a: 23).

Not surprisingly, for Rawls, it is the individual who represents the ultimate morally significant unit of concern. This is evident from his substantial body of work deliberating just domestic social institutions.Footnote 2 For his international theory of justice, he focuses on states that exhibit liberal democratic characteristics and on how they ought to evaluate international institutions and respond to other international actors. This focus extends the domestic social contract to the international sphere by ensuring that individuals are represented on the international level by their elected politicians. It is because of this great attention to the individual at the domestic level that his abandonment of absolute concern for individuals' interests at the international level is so remarkable. Transplanting a domestic social contract theory, which takes seriously the interests of individuals, to the international level, in which states are recognized as the actors, will not tender a conception of justice that would be most conducive to peaceful global institutional cooperation among states and, at the same time, ensure the interests of individuals are also met, unless all states are liberal democratic or similarly decent.

However, according to Rawls, his international model would develop laws that would promote equality and sovereignty of states (with some limitations) and contracts between states and, simultaneously, human rights. The international laws Rawls proposes can be divided into two distinct sorts. The first sort recognizes states as discrete units that interact; these laws demand respect for each actor and determine the rules of play. The second sort, represented by principle 6 and by the qualification on principle 4, which makes an exception in cases of “grave violations of human rights” (Reference Rawls1999a: 37), is premised on the belief that the primary unit of concern is individuals within states. An extension of the Original Position model, which understands actors at the global level to be states, cannot convey both of these sorts of international laws. This model cannot confer laws of the second sort, laws that promote and protect human rights.

The original Original Position forms what we can regard

The basis of political legitimacy, for Rawls, originates from a commitment to what he terms the Principles of Justice, that is, what it is possible for everyone to accept. His justification for the principles of justice, applied to the domestic level, is an appeal to what is fair for all persons, since only individual persons are intrinsically valuable. Rawls's justification for his principles of justice is that “an agreement on these principles is the best way for each person to secure his ends in view of the alternatives available” (Reference Rawls1971: 103). Rawls, concerned with defining the fullest freedom for each individual that is compatible with comparable freedom for others, demonstrates his commitment to the dignity of individual humans as rational beings. The institutions that would develop from this deliberation would be fair, since the parties are reasonable and will make decisions from appropriate motives, given that they do not know which particular positions they hold in life or which qualities or skills they possess. The idea is that since the original Original Position is attentive to the interests of all parties, we can hold our institutions to the standards that would be set by the parties deliberating in the Original Position; thus, we can legitimately assess our institutions' fairness.

Rawls's second application of the Original Position follows the original closely; however, rather than merely enlarging the pool of actors to include all individuals globally, he bases the legitimacy of international law on a hypothetical social contract between states. He claims that the rights and duties of states in regard to their sovereignty are “derived from the Law of Peoples itself, to which they would agree along with other peoples in suitable circumstances” (Reference Rawls1999a: 27). If all states were structured according to liberal democratic ideals, this application could very likely be deemed quite sensible and prudent. A community of well-ordered states would likely have little need for an international criminal legal system capable of dealing with serious human rights violations, since each state would have internal mechanisms for such purposes. In fact, it seems that respect for human rights is essential to the concept of a people, as depicted by Rawls (Beitz, Reference Beitz2000: 674; Buchanan, Reference Buchanan2000: 699). Safeguards, such as rescue treaties, might be employed to protect liberal democracies from the threat of a breakdown of the state, but this is an entirely different concern than building international protection for individuals from crimes against humanity and from genocide. Aside from this argument, Rawls's second application of the Original Position runs into much more serious problems due to the fact that the world's many states and their corresponding governments are comprised of very different characters.

It is easy to see how states as agents in the international sphere would agree to laws of the first sort, ones that protect the equality and sovereignty and freedom of states. It is not as clear why they would decide to institute laws to regulate their internal politics. Rawls expresses respect for human rights as “familiar and traditional principles of justice among free and democratic peoples” (Reference Rawls1999a: 37) and claims that:

It seems unlikely, however, that states in the Original Position would, as Rawls suggests, insist that other states respect the human rights of their own members. There are two possible reasons why decent states might work this requirement into the Law of Peoples. Perhaps it is, as Rawls claims, that “liberal and decent peoples have the right, under the Law of Peoples, not to tolerate outlaw states [states that do not respect the human rights of their citizens, since] … outlaw states are aggressive and dangerous; all peoples are safer and more secure if such states change, or are forced to change, their ways … otherwise they deeply affect the international climate of power and violence” (Reference Rawls1999a: 81). This specific argument, however, seems unfounded and merely an excuse to include this particular limit to sovereignty and rights, and to insert the obligations of liberal democratic states to protect global human rights. As David Luban points out in a similar criticism of Rawls's international theory, there are stable societies that pose no external threat, yet they violate the human rights of their own citizens in horrendous ways (Reference Luban2004: 132).

Another possible reason for Rawls to build respect for human rights into the principles of justice is simply the fact that decent states have such a strong commitment to human rights that they desire the human rights of all persons be respected. Rawls claims that “this refusal to tolerate those states [that violate human rights] is a consequence of liberalism and decency” (Reference Rawls1999a: 81). However, whatever the truth of his prediction, he makes no argument for this second alternative in the relevant terms, that is, as a product of deliberation in the international Original Position. Well-ordered states, the only states allowed a voice in the deliberation process, already respect the human rights of their own members; thus, there is no obviously necessary reason to build a requirement into the principles of justice among free and democratic states that all states respect the human rights of their citizens. It seems that Beitz is right when he argues that “human rights are ultimately justified by considerations about the reasonable interests of individuals, not those of whole societies conceived as corporate entities” (Reference Beitz2001: 277). Since the motivation and knowledge of the representatives of the well-ordered states are not clearly outlined in Rawls's theory, though, we need to question further whether a scenario in which this requirement would be agreed to is likely.

Rawls's theory hypothesizes reasonable decisions that would be made in an imaginary situation by well-ordered states deliberating behind a veil of ignorance. Since this scenario is hypothetical, chances are that there may be an account of knowledge and reasonable motivation that would provide a basis for the development of a human-rights-protecting law. Can we assume that the representatives of the well-ordered states know that they represent well-ordered states, but not the form of each state? Are they motivated by the liberal ideals on which their states are based? Rawls does not allow personal ideologies to influence the original Original Position, but it seems that this must be somewhat different for the international Orginal Position or there would be no point to excluding non-well-ordered states from participating. However, even if the participants do know that they are well-ordered states, the problematic principles, which are expressions of the second sort of law, are as unlikely to be agreed to as if the participants did not know.

Participants represent their own states as discrete units in the Original Position. The assumption is that the individual members of the state, and their particular interests, have been taken care of by the domestic Original Position. The representatives on the international level would agree to principles that would ensure the fullest freedom for each state that is compatible with comparable freedom for others (as the individuals did in the domestic Original Position). This situation would give us the first five principles that comprise the basic charter of the Law of Peoples (all of these are expressions of the first sort of law). What, then, can be made of principles 6 through 8? These three principles seem to fall less squarely into the category of laws that protect the equality, sovereignty and freedom of states.

Principle 8 claims that states have a duty to assist other states living under unfavourable conditions that prevent their having a just or decent political and social regime. These states, “while they are not expansive or aggressive, lack the political and cultural traditions, the human capital and know-how, and, often, the material and technological resources to be well-ordered” (Rawls, Reference Rawls1999a: 106). This particular requirement makes sense if the representatives do not know they are well ordered themselves or if it is regarded only as a rescue clause. Both of these options fit the purpose of the first sort of laws. States, not knowing if they would be burdened by poverty or lack of technical or political know-how, would likely strive for a requirement of assistance for burdened states. Well-ordered states, on the other hand, could have cause to worry about meeting unfortunate circumstances and could be supposed to agree to a law that would protect each of them and require that they help each other in such cases.

Principle 7 puts limits on the conduct of war. Broadly interpreted, this principle speaks directly to the purpose of laws of the first sort. Specific restrictions in the conduct of war would likely be agreed to by states faced with the potential for conflict. Discord between states must be expected and laws are created to control and minimize the negative outcomes of the conflict for the actors affected. This principle can easily be read as a contract between states for a defence of their assets against unnecessary damage in the event of a clash. A state's most important assets worthy of protection may include vital institutions and their buildings, natural resources and citizens—both as civilian and military personnel.

Can we make a similar claim for a rescue clause for principle 6 (requiring peoples to honour human rights) as we did for principle 8? A positive answer to this question seems doubtful. A rescue clause for this purpose seems unwarranted in any scenario of the international Original Position. A state that already honours human rights and is organized in such a way as to ensure the meaningful participation of its members in its politics is going to be less afraid of becoming a human-rights violating institution than it is of others judging it as such as a pretext for interference in its internal workings. It has no reason to believe that other societies will be able to offer judgement that is superior to its own. If the motivation of the participants in the international Original Position is similar to that of the participants in the original one, then they are motivated by protecting their freedom to act according to their own particular comprehensive doctrines, while allowing others a similar freedom. The protection of the rights of their own citizens by other societies does not follow from this objective.

A possible way in which Rawls's inclusion of human rights protection does fit with his Original Position model could be if his social contract theory were built on pre-existing moral principles. If his theory originated from the morally relevant commitment to the equality of all persons, it could, in fact, include a moral first principle that demands protection for human rights. Yet, for this defence of Rawls's inclusion of human rights protection to be viable, he would have had to spell out the pre-existing moral principles that his social contract is built upon. Rawls's theory does not itself meet this requirement. Others, however, such as Charles Larmore, have argued on Rawls's behalf that such an underlying moral principle is an essential feature of his political theory. Larmore claims that Rawls's theory draws upon “certain moral convictions” (Reference Larmore1999: 605), originating from “a principle of respect for persons” (Reference Larmore1999: 607).

Larmore's argument is persuasive, but we cannot use this moral foundation of equality to give us the protection for human rights that Rawls wants. While Rawls would agree that all persons have equal moral worth and that this fact grounds the moral legitimacy of his hypothetical social contract theory, he would argue that it could not directly ground any elements of domestic institutions or the Law of Peoples. Only reasonable agreement can produce the basic institutions that govern interactions between agents. Respect for the equality of persons provides a reason for demanding that each person and his or her interests be represented in deliberation, but it does not offer any particular assertions about the structure of institutions. In fact, Rawls argues not that protection for human rights originates from a foundational moral principle but, rather, that liberal states would agree to it in the deliberation process of the Original Position. Since it seems unlikely that either well-ordered or non-well-ordered states would actually have reason to want this externally imposed restriction to their internal politics, Rawls's theory lacks grounds for incorporating the protection of human rights into the Charter Principles.

International Crimes

Rawls's theory of international law occupies an untenable midpoint between a cosmopolitan view and the Westphalian notion of states. It is motivated by a liberal concern for individuals but it defers too much to the agency of socially organized groups as discrete units in questions of international law and international relations. Because it abandons individuals as agents at the international level, Rawls's theory cannot accommodate current conceptions of international criminal law. Although there are debates raging over the morally and prudentially right guidelines by which to protect human rights globally, most can agree that the advances in international criminal law aiming to promote and protect human rights must be accommodated in some way by any worthwhile liberal theory of international law.

Rawls's Law of Peoples denies individual agency at the international level and therefore, according to an accurate development of his theory, criminal prosecution should stem from the authority of a state over its own members in reference to the fair and right institutions and laws erected by that particular state. Since the Law of Peoples guides the behaviour of states towards each other, international law that develops from the international Original Position should cover only interactions between states. In apparent contrast, of the four categories of international crime, three develop directly from an international aim to protect individuals worldwide from the worst humans can do to each other.

The crime of aggression, the fourth category, clearly applies to the protection of the sovereignty and territorial integrity of states, and therefore plainly fits into what I have termed laws of the first sort. Although this category of crime is not clearly outlined in the Rome Statute, the latest inclusion to the Documents on the Crime of Aggression (UN, 2003) claims that “a crime of aggression is committed by a person who, being in the position of effectively controlling or directing the political, economic or military actions of a State, orders, authorizes, permits or participates actively in the planning, preparation, initiation or execution of an act which directly or indirectly undermines the sovereignty, the territorial integrity or the political or economic independence of another State, or in any other manner inconsistent with the Charter of the United Nations.”

The crime of aggression does, however, assume prosecution of a person rather than a state, and this causes problems for a theory of justice that does not recognize individuals in the global context. Rawls, consistent with ICC intentions, wants to be able to punish outlaw state leaders rather than subject the outlaw states themselves to sanctions. He claims that the Law of Peoples “must carefully distinguish three groups: the outlaw state's leaders and officials, its soldiers, and its civilian population” (Reference Rawls1999a: 94). In situations of unjust war, the leaders and officials “are responsible; they willed the war; and, for doing that, they are criminals … but the civilian population, often kept in ignorance and swayed by state propaganda, is not responsible” (Reference Rawls1999a: 95). There is, clearly, a considerable tension between what his state-centric approach is capable of and Rawls's wish to single out individual leaders. For his theory to do what he wants of it, Rawls really needs some method of holding individuals accountable.

A prohibition against war crimes, one of the categories of international criminal law that forbids certain human rights violations, may make it onto a list of laws originating from Rawls's international Original Position, but only because it can satisfy the purpose of laws of the first sort. Even though it speaks to the actions and protection of individuals, an international law prohibiting certain war crimes may be a reasonable outcome of the Original Position, because it demands that states ensure their soldiers obey internationally agreed-upon rules in their dealings with other states. An assumption of strict reciprocity applies. We can accept that most reasonable states would agree to this type of law, whether they were well ordered or not, for many different reasons. We could imagine a scenario in which states would agree to rules of war that forbade actions that unnecessarily targeted state resources, in this case citizens. Most acts of war crimes covered by Article 8(b) of the Rome Statute concern the targeting of civilians or non-military property.

Article 8 also prohibits torture or the inhumane treatment of combatants. It is more difficult to make a case for these laws as an outcome of the Original Position. But, I think it is likely that they would, in fact, be agreed to. Again, we can rely on the fact that citizens are a resource. If a captured soldier is returned to his or her state of origin, the state has not lost anything other than his or her fighting power during the period of captivity. Similarly, tortured soldiers are more likely to give up important secrets they could have kept under humane treatment. It may also be more difficult to recruit good soldiers when mistreatment by the enemy is likely. There are many reasons that certain restrictions about how combatants can be treated would be agreed to by reasonable international actors.

When we look at the remaining two categories of international crime, the crime of genocide and crimes against humanity, international criminal law completely diverges from probable outcomes of the international Original Position. The essential characteristic of both types of crimes is internal attack on members of a state. While they may “shock the conscience of humanity” (UN, 1998: preamble), these crimes are unlikely to limit the freedom of members of other states to pursue their interests according to their own personal comprehensive doctrines. As a reasonable representative of a particular state, no actor in the Original Position is going to request that its internal politics be examined and judged according to the ideals and conceptions of the good life held by other states.Footnote 3 Nor should any actor be so required. Rawls made this argument for individual actors in the domestic model; fairness entails granting as much freedom for each actor to pursue his or her own ends as is compatible with a similar freedom for all other actors.

International Legal Authority

We are left with one final question: Even if liberal peoples would agree to human rights protection, what gives them the authority to enforce it? Even though I argued that there are no reasonable grounds for human rights protection to result from an international Original Position, we can still recognize that a problem with authority would arise if this requirement did, in fact, develop from the deliberation process. The authority problem that arises from the attempt to extract a theory of international criminal law from an international Original Position as Rawls describes it is that his theory cannot ground the authority to prosecute international criminals. By this, I mean that his theory does not support a moral argument for international prosecution to fall to any particular state, group of states or international institution. Rawls claims that the list of human rights honoured by well-ordered states should be understood as universal rights that are binding on all states, but even if states have a moral responsibility to obey these laws, where does the right and responsibility to prosecute fall?

Rawls does not necessarily have to give an answer to this question. Since he acknowledges that there is a divide between what philosophy can tell us and what politics should determine, he is free to say that whatever is fairly decided in the Original Position can be seen as a morally legitimate transfer of authority. However, this theory runs into some problems, given that only well-ordered states have a voice in the Original Position. A section of the affected parties is denied participation, but is then forced to comply. This situation often occurs in power politics, but cannot be seen as a legitimate outcome of a liberal theory of fair international law.

A Rawlsian answer might be that we are only interested in what well-ordered representative states would reasonably agree to so that we can determine what is fair and right, and on this account we are not interested in a genuine agreement between all states. This is true—we are not concerned with the particular interests of all states being represented in deliberation. And, Rawls would argue, as he does in Political Liberalism, that it is quite acceptable to exclude unreasonable agents from the deliberation process since, he claims, political liberalism requires “a consensus of reasonable (as opposed to unreasonable or irrational) comprehensive doctrines” (Reference Rawls1996: 144).

However, this position seems unacceptably illiberal. The veil of ignorance that shelters actors in the hypothetical Original Position from their particular interests and ends is the safeguard Rawls built into his theory precisely to avert such limitations to fairness and participation. Nevertheless, Rawls's veil of ignorance does seem to be powerless to resolve the problem of having to accommodate unreasonable perspectives or demands in the deliberation process. Even though the veil of ignorance prevents participants in the Original Position from knowing their own particular circumstances and interests, it cannot guarantee that they have the required disposition or approach to deliberation necessary for productive participation in the Original Position.Footnote 4 However, even so, the exclusion of certain international agents from participation from behind a veil of ignorance is unwarranted in a liberal theory that develops from a foundation of respect for all individuals. And, excluding certain actors from the creation of the contract invalidates the authority that the contract confers if its legitimacy extends from this liberal foundation. Indeed, Rawls does not provide an adequate excuse for his deviation from the liberal commitment to participation as the moral foundation for a hypothetical social contract theory.

We can assume, though, that the authority for certain international prosecutions could arise from Rawls's theory. I alluded to this issue of authority earlier in this discussion when I looked at whether it would make sense for states in the international Original Position to agree to an international legal institution that would prosecute their own citizens for international crimes such as war crimes or crimes of aggression. It is not my aim to argue that it is obviously the case that states would agree to this arrangement, but I did concede that this agreement could follow from the Original Position. It could be in the interest of states to agree to transfer some authority to an international body that would prosecute the international crimes they have agreed to institutionalize when the states from which the perpetrators originate cannot or will not prosecute the crimes themselves. This regulation is consistent with the current parameters of ICC jurisdiction.

What I have been able to show in this section is that, simply in terms of authority, Rawls's theory has difficulty extracting a basis for international criminal prosecution of laws of the second sort, those that aim primarily at the promotion and protection of human rights globally. As long as the global actors are states, only the interests of states as discrete units will be addressed in the hypothetical deliberation process. And the authority to enforce international laws can only be seen as legitimate if they are laws for which all states, not knowing of their internal constitutions, would agree to transfer authority to an international institution.