Fernando R. Tesón

On human rights

* Introduction Stephen Shute and Susan Hurley * Five Fables About Human Rights Steven Lukes * The Law of Peoples John Rawls * Crimes of War, Crimes of Peace Catharine A. MacKinnon * Human Rights, Rationality, and Sentimentality Richard Rorty * The Others Rights Jean-Franois Lyotard * The Limits to Natural Law and the Paradox of Evil Agnes Heller * Majority Rule and Individual Rights John Elster

Eight Principles for Humanitarian Intervention1

Abstract When is humanitarian intervention legitimate and how should such interventions be conducted? This article sets out eight liberal principles that underlie humanitarian intervention, some of them abstract principles of international ethics and others more concrete principles that apply specifically to humanitarian intervention. It argues that whilst these principles do not determine the legitimacy of particular interventions, they should ‘incline’ our judgments towards approval or disapproval. The basic principles include the liberal idea that governments are the mere agents of the people, that tyrannical governments forfeit their legal protections, that human rights entail obligations for governments, that justifiable intervention must intend the end of tyranny or anarchy, that the doctrine of double-effect should be respected, that intervention is only warranted in severe cases, that intervention be welcomed by those it is intended to save, and that ideally it is welcomed by the community of democratic states.

Humanitarian Intervention: Loose Ends

Abstract The article addresses three aspects of the humanitarian intervention doctrine. It argues, first, that the value of sovereignty rests on the justified social processes of the target state – the horizontal contract. Foreign interventions, even when otherwise justified, must respect the horizontal contract. In contrast, morally objectionable social processes (such as the subjection of women) are not protected by sovereignty (intervention, of course, may be banned for other reasons). In addition, tyrants have no moral protection against interventions directed at them. Second, the article addresses the internal legitimacy of humanitarian intervention. It concludes that the liberal state may only use voluntary soldiers (either the voluntary army or mercenaries) to conduct humanitarian intervention. Conscription for that purpose is not permissible. The article shows that the long-standing criticism of mercenaries stems from a romantic prejudice and is thus unfair. Third, the article makes a distinction between intention (the determination to perform an action) and motive (a further goal that the agent seeks with that action) and shows that only intention is relevant for humanitarian intervention. A justified humanitarian intervention requires the intention to liberate the victims, but not necessarily a good further motive. It shows how mainstream doctrine has impermissibly confused the two concepts.

Global Justice and Trade: A Puzzling Omission

Economists generally agree that free trade leads to economic growth. This proposition is supported both by theoretical models and empirical data. Further, while the empirical evidence is more limited on this question, the general consensus among economists holds that trade restrictions are likely to hurt the poor. Even if the latter consensus turns out to be wrong, if free trade leads to superior growth, governments would have more resources to redistribute to the poor. It is surprising then that philosophers and human rights scholars do not advocate liberalizing trade as a way to improve the welfare of the poor as a class. While many scholars in these fields are silent with respect to the effect of free trade on the poor, some actually argue that liberalized trade is harmful for the poor, contrary to the claims of economists. In this article, we argue that any serious scholar concerned with the plight of the poor needs to address the theory and evidence regarding the effects of trade liberalization on economic growth, suggesting that the standard policy prescriptions of the philosophers and human rights scholars are, at best, of second order concern and, at worst, likely to be counterproductive in terms of improving the welfare of the poor.

THE LIBERAL CONSTITUTION AND FOREIGN AFFAIRS

Scholars have debated the meaning of the foreign-relations clauses in the U.S. Constitution. This essay attempts to outline the foreign-relations clauses that an ideal constitution should have. A liberal constitution must enable the government to implement a morally defensible foreign policy. The first priority is the defense of liberty. The constitution must allow the government to effectively defend persons, territory, and liberal institutions themselves. The liberal government should also contribute to the advancement of global freedom, subject to a number of conditions, especially cost. The essay recommends improved methods to incorporate treaties and customary international law into the constitutional structure. Treaties should be approved by the whole legislature and should generally be self-executing. Customary law should be genuine, not fake, and consistent with liberal principles. Finally, based on economic theory and evidence, the essay recommends that liberal constitutions prohibit the government from erecting trade barriers. It concludes by tentatively proposing concrete constitutional language to implement these recommendations.

Enabling Monsters: A Reply to Professor Miller

In this essay I respond to Professor Richard Miller’s article “The Ethics of America’s Afghan War,” Ethics & Int’l Aff., Vol. 25, p. 103, 2011, where he vigorously condemns the United States’ continued counterinsurgency efforts in Afghanistan. I argue that Professor Miller has failed to make his case. His two claims are empirically dubious and morally objectionable. Miller proposes, first, that the United States withdraw from the country after brokering a settlement under which the Taliban would be allowed to rule over part of the country. I reject this proposal as morally intolerable given the Taliban’s abject human rights record. He then calls on the United States to abandon her delusions of grandeur and humbly accept that its she can no longer achieve its her objectives by wielding hegemonic power. I reject this view and offer a guarded defense of American hegemony.

The Moral Basis of Humanitarian Intervention

The liberal defense of humanitarian intervention rests on a number of propositions. Political institutions can only be justified by reference to the rights and interests of individuals. International law is no exception. The principle of sovereignty — central to international law — is a derivative, not intrinsic, value. The moral standing of the state depends in part on its legitimacy of origin, and in part on its ability to serve individual rights and interests. The liberal defense of humanitarian intervention I offer here, then, presupposes that the basic principles of political morality are objective, not contextual. If liberal institutions are justified, then they are appropriate for all persons regardless of history and tradition. These propositions, however, still underdetermine the question of the legitimacy of humanitarian intervention. A critic can agree with the liberal views about sovereignty and human rights and still maintain that the use armed force is never, or almost never, an appropriate remedy to end tyranny.

A Philosophy of International Law

* The Kantian Thesis * Sovereignty and Intervention * International Law, Game Theory, and Morality * The Rawlsian Theory of International Law * Self-Determination, Group Rights, and Secession * Radical Challenges: Feminism and International Law

Humanitarian Intervention: An Inquiry into Law and Morality

International Law, Humanitarian Intervention and Moral Theory The Assumptions of the Non-interventionist Model The Hegelian Myth Utility, Rights, Intention and Motive in Humanitarian Intervention The Liberal Framework for Humanitarian Intervention The Concept of Humanitarian Intervention in International Law Unilateral Humanitarian Intervention: State Practice (1945-1998) Humanitarian Intervention Authorised by the United Nations Security Council Human Rights and Humanitarian Intervention in the World Court: The Nicaragua Decision Humanitarian Intervention Fin De Siecle: Kosovo and Iraq Index.