State civil disobedience: A republican perspective

Introduction

Is it possible for states to engage in “civil disobedience”? For some years now, this apparently oxymoronic question has been discussed under the heading “International” or “State Civil Disobedience” (SCD), referring to state action which violates international law for the (visible) purpose of reforming it and, thereby, challenging global injustices (Allen, 2011; Franceschet, 2015; Neubauer, 2009; 2016). The SCD discourse is part of the broader debate about possible sources of transnational democratization and the improvement of international human rights protection. Otfried Höffe (2007: 244), for example, claims that the idea of transnational democracy presupposes the possibility of “world-federal disobedience” which, of course, would have to remain “the ultima ratio,” because “as with individual states, disobedience at the global level is prone to considerable abuse.” Therefore, Robert Goodin (2005: 236) demands that states, which act like “would-be law-makers” by breaking international law, should justify their actions publicly and prove their willingness to accept legal sanctions. This might be the only way to find out whether these states differ from “ordinary law-breakers.” The lawbreaker has to prove that it seeks a “moral improvement of society” (Hjorth, 2017: 332). A good example was the Brazilian government’s decision to issue a compulsory license for an HIV/AIDS medication produced by the US pharmaceutical company Merck, in defiance of intellectual property rights guaranteed by the TRIPS Agreement, in May 2007 (Neubauer, 2016: 141–170). But there is another side to the debate which concerns analogies between civil disobedience and humanitarian intervention (Buchanan, 2004: 456–466; Hoag, 2007; Miller, 2015). Of course, this subject is much more controversial than the aforementioned cases, and there are many reasons why transferring the justificatory scheme of civil disobedience to the level of international relations might be especially problematic in the case of military operations. Envisioning state lawbreaking as a kind of civil disobedience might be misleading, mainly because it not only risks “reproducing a conventional view of the nation-state as the predominant and indeed central institutional player on the global scene,” which may be empirically inaccurate, but also because it depicts states as “conscientious” individuals, which is “normatively dubious” (Scheuerman, 2016: 240).

Against these and other well-founded reservations, I will argue that justifying international lawbreaking in terms of SCD might be at least a useful test case for a normative perspective on questions concerning global justice and human rights protection—just as the justification of “domestic” civil disobedience is “a crucial test case for any theory of the moral basis of democracy” (Rawls, 1971: 319). The normative perspective which I will defend in this article is the ideal of freedom as non-domination and the basic right of active participation in republican political theory. ¹ So far, the SCD discourse has been strongly influenced by Rawls’ concept of civil disobedience, which implies some quite restrictive criteria for the justification of SCD. To challenge these restrictions and to identify fairer justification criteria for the international level, I will draw heavily on insights from the work of Hannah Arendt and Philip Pettit in the first part of the article. In the second part, I will examine whether these criteria can reasonably be applied to international relations. Humanitarian intervention as a special case will be the subject of the third and last section. I will show that the republican justification of SCD can make a practical-political difference only in those cases in which a state breaks international law to protect the enforcement of constitutional rights, because the ideal of non-domination and of the basic right to participation are too demanding for a normative extension of the sovereignty-restricting function of human rights in a pluralist world.

The republican case for civil disobedience

According to its most influential definition provided by John Rawls (1971), civil disobedience is “a public, non-violent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government” (1971: 320). The purpose of the disobedient is to engage with “the sense of justice of the majority,” in calling her fellow citizens’ attention to serious injustices taking place in society (Rawls, 1971: 320). But to be classified as disobedience, action must be taken within “the boundary of fidelity to law”; protestors who cross this boundary are engaged in “resistance” which, like “conscientious refusal,” is distinguished from civil disobedience (Rawls, 1971: 322). Jürgen Habermas (1985) formulates a very similar definition, but specifies some points, such as the public character of civil disobedience “which, as a rule, is announced in advance and which the police can control as it occurs” (1985: 100). Robin Celikates (2016a, 2016b) has recently criticized Rawls’ and Habermas’ liberal accounts for unnecessarily restricting the practice of civil disobedience, and thereby erasing its radical nature (see also Brownlee, 2012: 21–24). As an example of an alternative approach, he mentions Hannah Arendt’s essay Civil Disobedience from 1970, in which she defines this concept much more broadly. However, Arendt (1972) fully shares Rawls’ and Habermas’ view in one respect: activists cannot justify their actions with “individual self-interests” (Habermas, 1985: 100), religious doctrines, or “the counsels of conscience” which are “unpolitical” because they are “not primarily interested in the world,” but in the moral purity of the self (1972: 60, 62). Instead, the activist should invoke “the commonly shared conception of justice that underlies the political order” (Rawls, 1971: 321). But Arendt (1972) argues that such a “consensus universalis” is “implied in the right to dissent,” which means that it can only contain general constitutional norms, but not “specific laws or specific policies” (1972: 88). Arendt takes this right to dissent very seriously: First, she criticizes the liberal claim that the activists should prove their “fidelity to law” by “accept[ing] the legal consequences of their conduct” (Rawls, 1971: 322). Arendt (1972) objects to “the absurdity of this demand,” on the basis that such a “self-sacrificial element” is “usually the hallmark of the crackpot” which makes any rational discourse impossible (1972: 55, 67), because abstract criteria such as conscientiousness and fidelity to law invite moralistic commands which suffocate any open political contest. Second, whereas Rawls (1971) considers civil disobedience to be a “last resort,” limited to “serious infringements of the first principle of justice, the principle of equal liberty,” and to “blatant violations” of “the principle of fair equality of opportunity” (1971: 326), Arendt (1972) considers not just those acts of civil disobedience which aim to restore First Amendment Rights to be legitimate, but also those which contest the low democratic quality of political decision-making processes (1972: 89). She leaves no doubt that civil disobedience is a fundamentally important instrument for initiating democratic reforms and challenging injustices: “The law,” Arendt (1972) writes, “can indeed stabilize and legalize change once it has occurred, but the change itself is always the result of extra-legal action” (1972: 80).

Arendt (2006b) has often mentioned the special value of “the right ‘to be a participator in government’” (2006b: 210) and expressed her disappointment that this right is not sufficiently realized in the representative governments of her time. From an Arendtian perspective, then, “[c]ivil disobedience for the sake of further democratizing civil society, the polity, and the economy is legitimate political action” (Cohen and Arato, 1992: 598). Many scholars share the position that, from a republican point of view, disobedience should be regarded as a means to prevent deformations of the democratic decision-making process, whereas from a liberal point of view, it could only be legitimate in the event of an open violation of constitutional rights (Markovits, 2005: 1941; Smith, 2013: 8–9; Celikates, 2010: 291). A participatory (or “neo-Athenian”) version of republicanism, which, like Arendt’s (2006a), is based on the premise that “freedom is primarily experienced in action” (2006a: 149), implies that the right to participation can be considered the fundamental “right of rights,” to use Jeremy Waldron’s (1999: 232) term. However, this point should not be misunderstood as being a degradation of private or social rights. Contemporary republicans such as Frank Michelman (1988, 1979) not only refer to the “republican appreciation of the political significance of privacy” (1988: 1535), but they also allude to the basic political value of social rights, which enable people without property to be engaged in public life (1979: 676). From a republican point of view, private and social rights are preconditions for realizing political liberty - that is why not just civil rights violations but also social inequalities and deficient measures for the fight against poverty might be reasons that could justify a decision to use tactics of civil disobedience.

This interdependency of political, private, and social rights can be further clarified by using Philip Pettit’s republican definition of “freedom as non-domination.” In contrast to liberal concepts which define freedom as the absence of obstacles preventing a person from acting according to her will (“freedom as non-interference”), Pettit (1997) understands a condition of “non-domination” as the absence of dependent relationships which enable one party to dominate the other(s): This condition exists if a power-bearer has the capacity to interfere arbitrarily; it is not necessary that this person has the intention of actually using this option (1997: 63). Therefore, the essential task of republican politics is to eliminate opportunity structures of domination constituted by the state (imperium) or by private persons (dominium), which can be realized by enabling citizens to control the interferences of the state or private bodies, in their capacity to act. For example, the contestability of dominium should be guaranteed by a comprehensive system of social rights, which could include a basic income that would reduce employers’ opportunities for using arbitrary pressure against defenseless employees, especially in times of poor employment prospects (Pettit, 2007: 5). A shortcoming of Pettit’s (2004) approach is, however, its distrust of democratic processes—including informal, extra-institutional forms of participation—which leads him to an open plea for a “depoliticized democracy” dominated by expert commissions (2004: 53f.). In contrast to Arendt, Pettit (1997) does not ascribe an intrinsic value to political participation, which he calls just “a means of furthering liberty,” but “not […] its defining core” (1997: 30). The advantage of such an instrumental concept of liberty is that the usefulness and the legitimacy of civil disobedience can be measured by asking whether it promotes the protection of those basic rights which are a precondition for the realization of non-domination. But on the other hand, Pettit’s theory seems to be less appropriate than Arendt’s in justifying civil disobedience by reference to the low democratic quality of political procedures. James Bohman (2005), drawing on Arendt’s (2006a) concept of freedom being grounded in “the human capacity of beginning” (2006a: 215), points out that political institutions cannot meet the requirement of non-domination simply by constituting a practice of consultation, with rules which are themselves incontestable: citizens can only be free if they have “the capacity to begin, to initiate deliberation on democracy itself,” or better: “the power to assign and modify duties and obligations” (2005: 103–104; see Ivison, 2010: 41f.). Acts of civil disobedience can be a manifestation of this collectively generated power, provided that the desired reforms are justified by constitutional principles which must be, in general, shared by “a significant number of citizens” (Arendt, 1972: 74).

Justifying SCD

In this section, I will discuss whether transferring the republican concept of civil disobedience to the area of international relations might be reasonable. Allen Buchanan (2004) argues that, given the inability of the UN Security Council to agree on imposing effective measures even against states which commit the most obvious human rights abuses, violations of the ius cogens (especially the general prohibition against the use of force) can be legitimate if they initiate an advancement of international law via “illegal legal reform” (2004: 456). In support of his argument that illegal reforms on humanitarian grounds “can be morally justified even if there is no legal justification or legal excuse for it,” Buchanan (2004) refers to Martin Luther King’s and Mahatma Gandhi’s actions and justifications of civil disobedience (2004: 464). But Franceschet (2015: 240) criticizes that such an approach provides an ethical blueprint for economically predominant states to intervene in weaker countries and, therefore, to an inversion of the idea of civil disobedience as a critique of the power imbalance between the state (or the majority of the people controlling it) and a dissident minority of citizens, which claims that its position is not adequately represented in the political process. ² He argues that “weaker states” should not be obliged to fulfill the usual criteria for justifying civil disobedience, because he considers the requirement that disobedient states should strive for the improvement of international law and other generalizable purposes too burdensome for weaker states (Franceschet, 2015: 240, 250). In his view, even the refusal of African states to execute arrest warrants for dictators such as Omar al-Bashir, indicted by the International Criminal Court (ICC), “cannot be quickly dismissed as ordinary or selfish lawbreaking” (Franceschet, 2015: 247). Although Franceschet (2015) makes clear that cases like this are “not clear-cut as instances of justified civil disobedience,” he postulates that to make sense of them, “we need to expand the conceptual vocabulary of state civil disobedience” (2015: 247). In my view, such an attempt to free the concept of civil disobedience from clear moral standards makes it normatively empty and politically dangerous. In the rest of this section, I will argue that a state which breaks international law must satisfy some minimal criteria if it intends to describe its noncompliance as civil disobedience. Therefore, I will draw heavily on insights from Gerald Neubauer (2016), who has recently published the most detailed and first book-length study dealing with the question of whether a state has a moral right to engage in civil disobedience for the purpose of protecting its citizens’ constitutional rights. Although he mentions the obvious problem that, from the perspective of normative individualism, the state “cannot claim extra-positive rights on its own terms” (Neubauer, 2016: 117), he answers the question in the affirmative: If a state is confronted with legally valid claims (from private corporations or international organizations (IOs)) which will result in a reduction of the state’s capacity to guarantee its citizens’ constitutional rights, then these citizens have an interest in demanding that their government protects their rights. Drawing on Rawls’ conception of civil disobedience, Neubauer (2016: 120–128) lists five criteria for defining SCD:

Again, using the Rawlsian approach, Neubauer enumerates three conditions for the justification of SCD:

These requirements seem to me to be quite suitable for analyzing whether particular instances of international lawbreaking can be justified as actions of SCD. The most important aspect might be Neubauer’s third definitional criterion which, in my view, could be more specifically formulated: A disobedient state must clearly demonstrate that its actions “are on behalf of a wider whole”—for example, for the purpose of fostering the solidarity of the international society —; they are “not simply an effort to extricate particular actors from particular constraints” (White, 2017: 644). However, I think that Neubauer’s first justificatory criterion is too vague: What exactly means “systematic,” and which kinds of human rights are included? Neubauer (2016: 126) makes clear that in his view, the protection of “all dimensions of human rights - that means liberal, social and, if applicable, collective human rights - has to be taken into account” as a potential justification for SCD. But he himself admits that it is not possible to use Rawls’ (1999) liberal approach to justify SCD for the purpose of defending social rights, for in his Law of Peoples, Rawls (1999) argues for a minimalist conception of human rights which he defines as “a special class of urgent rights, such as freedom from slavery and serfdom, liberty (but not equal liberty) of conscience, and security of ethnic groups from mass murder and genocide” (1999: 79). In the next section, I will argue that such a minimalist concept is a better way to protect human rights in a pluralist world. This is why I find Neubauer’s requirement that a justification of SCD must be based on human rights somewhat misguided: I think that in cases where a government breaks international rules to protect the rights of people living in its state territory, the government’s appeal to the “liberal“ and social rights entrenched in its state’s constitution is equally sufficient, if these rights can reasonably be framed as part of a (vision for a) moral foundation for a just world order. But the point is that Rawls does not even accept that the fight for basic social rights is a legitimate reason for civil disobedience in the domestic context. Rawls (1983) argues that only procedural provisions should be used to guarantee the “fair value” of equal political liberties, while he rejects the demand for a minimum of social rights as “irrational” (1983: 44). In contrast, republican theory attaches greater value to social rights, because it takes the problem of power imbalances arising from extreme poverty and inequality seriously as they are a potential source of domination, whereas liberalism focuses only on interference with private and political rights and does not consider power relations (Bachvarova, 2013; Gädeke, 2017: 65–70). From a republican point of view, the basic right to participation obliges democratic governments to enable their citizens to take part in political life on an equal basis, by guaranteeing freedom from want and fear, as an “indispensable precondition of the political” (Arendt, 2003: 39). A government’s moral obligation to protect its most vulnerable citizens from the imposition of austerity measures, which would cause extreme levels of absolute poverty, is a consequence of this premise; and this obligation can, of course, justify disobedience.

And yet, the fundamental question regarding the justification of SCD is this: How can it ever be justified to postulate that any state has a “right” to SCD, given that state power itself is a potential source of domination? In the last section, I argued that from a republican point of view, the individual’s right to participation is the best method for maintaining a state of non-domination which is, nonetheless, vulnerable to illegitimate constraints by states as well as private actors. It is this focus on individual rights that is intended to protect the concept of SCD against its misappropriation by right-wing governments insisting on their “sovereignty,” which is postulated as a negative response to humanitarian demands from transnational or supranational organizations. ³ However, Pettit (2010: 71, 77) suggests that the citizens of a “representative state,” which respects basic liberties and is controlled effectively by the people, can only be considered to be free if this state is also an “undominated state,” because any alien control executed by an external power over their government would also limit the citizens’ capacity to effectively use their right to participate. To be free, a state must “retain the capability for minimum self-direction” which means that its people “can collectively control the power exercised over them” (Laborde, 2010: 63).

However, Pettit (2010) shows that in international relations, structural domination takes many forms and is often subtle: A private corporation, for example, might even exercise alien control over a state even without active interference—without actually making a threat to switch production to another country, for example, instead “[i]t will already enjoy control just insofar as the state is disposed to go along with its wishes, say because of wanting to court the corporation’s goodwill” (2010: 79). Pettit (2010) makes clear that alien control can also be exercised by IOs: Although these are less likely to cultivate dominating structures because, in contrast to private corporations, IOs have institutionalized forms of representation which are designed to stimulate intergovernmental deliberation and, ideally, help to build a “regime of common reasons,” “there is no guarantee that they will deal with an individual state on a basis that leaves its presumptively available options intact” (Pettit, 2010: 86, 79). The International Monetary Fund (IMF), for example, can penalize a state for refusing to implement austerity measures by denying it the access to a desperately needed source of funding. From a republican perspective, this kind of blackmail potential might be reduced by structural reforms of IOs which “make them more representative and more accountable, in order to ensure that poor countries are better able to defend their interests and demand fairer terms of interactions” (Laborde, 2010: 62).

There is no doubt that every state has a right to resist different kinds of dominating rule practices established by other states, corporations or IOs, but under what circumstances might it be justifiable for a state to resist in a way that violates international law? Using Neubauer’s criteria listed above, we might say that the central requirement is the violation of human rights. One of the paradigmatic cases studied by Neubauer (2016) is a conflict between Argentina and the IMF in the first half of the 2000s, which was provoked by Argentina’s refusal to repay loans to private creditors due to its big economic recession after 2001. Argentina’s high level of public debt was a heritage of the military dictatorship which had enforced neoliberal reforms in the 1970s with the help of IMF credits. Some courts, including the Federal Constitutional Court of Germany, held that the customary rule of pacta sunt servanda obliged Argentina to pay its debts, whereas the Argentinian government argued that an immediate repayment would endanger the public guarantee of elementary social rights, which was not implausible, as there was a strong increase in the number of people in absolute poverty during this period (Neubauer, 2016: 211). In the Argentinian case, however, the justification of SCD can be based on the additional fact that the basic right to participate was suspended during the years of the military junta, so that the people were unable to control the influence of the government and the IMF on their (future) scope of action. Because the IMF and the private creditors supported the oppressive regime, at least indirectly, with their payments, their later claims could be interpreted as dominating demands because international aid can only be legitimate if it is “compatible with the development and maintenance of democratic institutions” (Pettit, 2014: 177). Neubauer (2016: 206) shows that this argument was an important part of the justification presented by Argentina in public forums such as the General Assembly of the UN, but he also argues that the international credit law norms broken by the Argentinian government violate various standards of justice realized in most national legal systems in the Western Hemisphere—for example, the prohibition of credit agreements which are contra bonos mores or the existence of well-regulated insolvency proceedings. Neubauer (2016) interprets the transnational protests from numerous nongovernmental organizations (NGOs) and developing countries against those deficiencies of international credit law as evidence that the Argentinian disobedience was supported on the basis of globally shared principles (2016: 196–205).

The question of whether a state has a moral right to resist a structure of domination by breaking international law will be controversial in particular cases. We might ask, for example, whether an EU member state, which is obliged to implement certain austerity measures to comply with the Stability and Growth Pact (SGP) criteria, has a right to refuse such implementation in order to protect its people from unacceptable cuts to social services. While republican scholars like Laborde and Ronzoni (2016: 289) argue that the structural and cohesion funds of the EU do not cultivate structures of domination, “because EU member states have consented to them, and have done so voluntarily,” White (2017: 638–640) demonstrates in a recent essay on “principled disobedience in the EU” that the example of the Greek government’s opposition to the bailout conditions proposed jointly by the European Commission, the IMF, and the European Central Bank in 2015 is much more complicated because the fiscal pact and other post-2010 European crisis management measures have seriously compromised the coherence of European law by enlarging the areas of emergency rule and, thereby, undermining the principle of democratic self-government. In the previous section of this article, I mentioned that from an Arendtian point of view, the defense of (or fight for) democratic structures might be a legitimate reason for civil disobedience. That is why we should broaden the field of legitimate reasons for SCD: Not only the protection of human rights, but also resistance against undemocratic (supranational or transnational) decision-making processes, can be a good reason for international lawbreaking.

Humanitarian interventions: A case of SCD?

I will now examine the more controversial part of the SCD discourse: The question of whether or under which circumstances humanitarian interventions can be considered as acts of civil disobedience. The most obvious objection to such an analogy is probably the deviation from the criterion of nonviolence. Although humanitarian interventions do not necessarily include the use of violence in a narrow sense (e.g. in the case of enforcing no-fly zones within a sovereign state), it would be absurd to deny that, generally, humanitarian interventions violate the non-violation principle. In a way, this is true for all kinds of state action, for as we know from Critical Legal Studies, administrative or judicial acts always take place “in a field of pain and death” (Cover, 1986: 1601). However, the use of military force is especially problematic, because the UN charter forbids any use of force that is neither an act of self-defense (Art. 51) nor authorized by the Security Council “to maintain or restore international peace and security” (Art. 42). Of course, the humanitarian interventions in Yugoslavia in 1999 and Libya in 2011 have the potential to create customary international law in the long term (Franck, 2003), which would make the justificatory reference to the concept of civil disobedience superfluous. However, until this point is reached, interventions without a UN mandate can, at least to some extent, only be justified extra-legally. I am aware that this kind of reasoning—the justification of military force by using ethical standards such as the “Responsibility to Protect” (R2P) rather than positive legal norms—is criticized by many scholars (and activists) as a dangerous attempt “to deformalize international law-making so that it becomes flexible” enough for the creation of “a contemporary version of imperial right that abandons the principle of sovereign equality and the egalitarian structure of international law” (Cohen, 2006: 495–496). I do not doubt that this is a serious problem, but nonetheless, I will argue that “the principle of sovereign equality” has no intrinsic moral value, from a republican point of view; it is only useful and respectable so long as it is used to protect human rights.

A good starting point for discussing the justification of humanitarian interventions in terms of SCD is an essay by Nathan Miller (2015), who adapts Rawls’ theory of civil disobedience and connects it to his Law of Peoples to develop some criteria for considering justified humanitarian interventions as SCD. Miller argues that the R2P doctrine can be seen as a globally shared “common political commitment” which is shared globally, because it was not only mentioned in the final declaration of the World Summit in 2005 and adopted by the Security Council in Resolution 1674, but also referred to by the Security Council in its Resolution 1973, which formed the legal basis for military intervention in Libya in 2011. Thus, a state that intervenes militarily without a Security Council mandate might be able to prove by reference to the R2P, that it is not motivated by self-interest but by globally shared principles of justice (Miller, 2015: 361). But for it to be considered a legitimate form of SCD, an intervening state must demonstrate its “conscientiousness” by explaining its reasonable intentions to a global audience, such as the UN, and by accepting the legal consequences of its disobedience, for example, by submitting itself to the jurisdiction of the International Court of Justice (ICJ; Miller, 2015: 363–366). In the first part of this article, I explained that Arendt opposes this last requirement in the context of domestic civil disobedience, because it is unnecessary for ensuring general adherence to the law in constitutional democracies. However, on a world scale, things look rather different: Since international law is too fragile and marked by a lack of enforceability, releasing the disobedient state from the obligation to accept penalties from the ICJ, would put at risk the existing level of juridification. I am not sure whether this argument should apply to all kinds of SCD, such as Argentina’s resistance to international credit law standards that I mentioned in the previous section “Justifying SCD,” but I am perfectly sure that it applies to the use of illegal military force, which is by far the most dangerous threat to the stability of international law. The open assurance of a government, that it will accept the legal consequences of its actions, should be regarded as a minimum precaution to guarantee that violence (especially against civilians) should be avoided as much as possible.

The most important and controversial question for the justification of a humanitarian intervention considered as SCD, however, concerns the right reasons for such an intervention. As Rawls (1999: 79) rightly points out, it is the function of human rights to “specify limits to a regime’s internal autonomy,” thereby limiting its right to self-determination. But to do justice to the deep pluralism of national legal systems on a global scale, Rawls (1999) argues that force can only be used “to interfere with outlaw states” which are committing crimes against humanity and thereby undermining the normative basis of a just world order (1999: 93). However, such an intervention would only be legitimate if the international community had already imposed sanctions against the outlaw state, at an earlier stage, and waited for a reaction (Rawls, 1999: 94). Applied to our context of SCD, this requirement corresponds to the criterion of the exhaustion of all legal means, in the case of domestic civil disobedience, but is it reasonable to formulate such a requirement if we must deal with the possibility of crimes against humanity, which call for urgent action? (The same also applies with regard to Arendt’s criterion of “acting in concert”: In some cases, unilateral action appears necessary due to lack of time.) At least, even in his remarks on domestic civil disobedience, Rawls (1971: 328) comments that “[s]ome cases may be so extreme that there may be no duty to use first only legal means of political opposition.” More important, however, is the question of whether interventions could be justified in the case of less grave human rights abuses, for example, for the purpose of “democratization.”

Like Rawls, Pettit and other republican theorists answer this question in the negative, because they attribute a high value to the concept of sovereignty. On one hand, Pettit (2014) concedes that “to hail the external non-domination of an ineffective or oppressive state as an ideal would be madness; it could amount to licensing wholesale mayhem or murder” (2014: 153). On the other hand, he argues that the exercise of alien control by “representative” (liberal) over “non-representative” (authoritarian) states is always “a pro tanto evil” (Pettit, 2010: 76). By showing that the normative foundation of republican international law is “an ideal of externally undominated peoples,” and not of states (Pettit, 2014: 153), it is possible for Pettit to explain why these two statements are not contradictory. In his view, a people can only act as a collective agent, if a state “acts and speaks in its name”; otherwise it is just “a collection of individuals” (Pettit, 2014: 152). For this reason, the domination of a state cannot be separated from the domination of its people (Pettit, 2014: 154, 223). It is therefore not surprising that Pettit, like Rawls, takes a rather sympathetic view on the concept of sovereignty. He tells us that all states should follow the ideal of “globalized sovereignty: that is, sovereignty extended to every people on earth” (Pettit, 2014: 153). Other republican scholars follow Pettit on this issue. On one hand, it is admitted that “[e]xternal interventions in breach of a state’s basic non-domination might be necessary in cases of humanitarian catastrophe, failed states and oppressive regimes.” (Laborde and Ronzoni, 2016: 290) But on the other hand, Laborde and Ronzoni (2016) state that “all interventions of this kind entail some form of international domination” and that every act of domination “is always pro tanto objectionable” (2016: 290; see also Gädeke, 2016: 22; Oldenbourg, 2016: 194). In contrast, I want to argue that a military intervention carried out for the purpose of preventing serious human rights abuses cannot be a form of domination of a people, because the removal of a government which violates essential human rights is a precondition for enabling its people to constitute a form of self-government based on the principle of freedom as non-domination.

The neo-republican positions that I have just cited mainly follow Rawls’ (1999) plea for “not insisting on liberal principles for all societies” but “preserving significant room for the idea of a people’s self-determination,” as a precondition for “maintaining mutual respect among peoples” (1999: 61–62). It is not clear whether Rawls supports the maxim of tolerance and equal respect for states’ rights, including the rights of “decent” non-democratic states, simply for pragmatic reasons or because it has an intrinsic value for him (Ladwig, 2014: 486). Republican scholars like Pettit, seem to be more explicit in this regard, giving strong normative weight to the sovereignty of all peoples, “however their states are organized internally” (Pettit, 2014: 153). In contrast, I argue that from a republican point of view, the pragmatic justification of tolerance toward non-legitimate (or dominating) states is the only acceptable approach, because a republican approach has to defend the right to participation for use as a trump card against any claims to sovereignty or “collective rights” which could be used to arbitrarily divest people of their individual rights, that is, to dominate them. The one-sided sympathy of contemporary neo-republican thought for the value of sovereignty must be countered by the republican postulation that the citizens of undominated peoples should also become “citizens of international law’s republic,” that is, part of an international community “constituted on grounds of deterritorialized solidarity” (Besson, 2009: 229, 236). In a modern world, the normative foundation for such a global community can only be the idea of a global constitution which guarantees essential individual rights. Republicans who share the vision of an international law’s republic must take the premise of “normative individualism” seriously, which is usually associated with Fernando Tesón’s (2005: 147) “thick liberal view” of international law: States’ rights can only be derived from universally valid individual rights. Tesón (2005) does not accept the position that states have a moral status that is independent from those individual rights (2005: 17). Sovereignty is “a derivative value, not an intrinsic value” (Tesón, 2005: 143). Does this premise imply that we must argue for a kind of human right to democracy, which would justify interventions for the purpose of democratization as an example of SCD? I do not think so, and in the rest of this section, I will show why a “minimalist” understanding of human rights is more suitable for ascertaining in which situations SCD might be justified.

Modern republicans like Hannah Arendt are not only determined defenders of a basic right to participate, but they are also realists (Hayden, 2009): they advise us that “your care for the world takes precedence in politics over your care for your self”: “[T]he world and its future” (Arendt, 1992: 50)—its “stability” (Arendt, 2006b: 221) ⁴ —is more important than our thirst for moral perfection. As a matter of pragmatic human rights protection, the demand for a legally enforceable human right of participation or democracy is likely to cause a lot of damage because it would lead to the attenuation of the sovereignty-restricting function of human rights. The meaning of human rights has to be “thin” (Walzer, 1994) enough to be indisputable in all corners of the earth because defenseless individuals, for whom the international community is the last hope, have to count on those rights’ protective function in emergency situations. It is for the sake of these people that “human rights […] disable a certain argument against interference by outsiders in the affairs of a state” (Raz, 2010: 328, 332) by generating not only moral, but legal obligations on which defenseless people must be able to rely in states of emergency. Although the right to participation is the “right of rights” of citizens of democratic states, it cannot be a basic human right, because it is too demanding to be legally enforceable in a pluralist world (Bernstein, 2006).

In International Relations theory, the question about the moral depth of global values in the constellation of legal pluralism is an important theme in the controversy between “pluralists” and “solidarists.” While pluralists like Robert Jackson (2000: 291) argue that security and the stability of an international order built on the principle of equal sovereignty are “more important, indeed far more important, than minority rights and humanitarian protections in Yugoslavia or another country,” because humanitarian interventions tend to weaken the stability of the international society (2000: 291), “solidarism places the rights and duties of individuals at the centre of its ethical code” (Wheeler and Dunne, 1996: 95). It should be clear that, in my view, republicans have to follow the solidarist perspective on international society: They should not recognize a duty to respect the sovereignty of states that systematically commit crimes against humanity (or are unable to prevent those crimes being committed by warlords or marauding gangs). Nonetheless, I fully share Jackson’s (2000) objection that “[w]ar is the biggest threat to human rights” - and “[w]ar between the great powers is the biggest humanitarian threat at all” (2000: 291). This pragmatic concern about the stability of the international society, as a precondition for human rights protection, is one reason why I argue for a minimalistic conception of human rights that only includes a moral obligation to intervene in the case of genocide, ethnic cleansing, mass murder, or the enslavement of parts of the population. The more important reason, however, is that unrealistic demands for a human right to democracy would undermine the protection provided by the sovereignty-restricting effect of human rights.

The idea that a maximalist interpretation could endanger the last resort function of human rights indicates an old dilemma which no political theorist has described so vividly as Hannah Arendt. She presumes that elementary rights can only be granted and protected effectively by nation states, which is why “there is just one human right” (Arendt, 1949, 1973), the “right to have rights,” which means “to live in a framework where one is judged by one’s actions and opinions” and “to belong to some kind of organized community” (1973: 296–297). In principle, humanity itself should guarantee this basic right, but Arendt questions the feasibility of this ideal and suggests that human rights are not “real” legal guarantees at all, except for those individuals who are already members of a particular community governed by the rule of law (Näsström, 2007: 649). Arendt’s critics have ascribed this “disastrous interpretation of the discourse of human rights” to her “republican bias,” meaning her ignorance of the fact that “one can have one’s legal personhood assured irrespective of one’s citizenship status” (Cohen, 1996: 178). In this context, scholars often refer to the remarkable progress in international human rights protection which has been made since 1951, and indeed, the quick development of R2P since the millennium has rightly been called an “exemplary lesson” for norm change processes in human rights development (Fröhlich, 2011: 136). But Arendt reminds us that the legal recognition of such a norm change will be uncertain so long as it continues to be, de facto, fully dependent on political negotiations between nation states (in the Security Council), some of which—such as the governments of China or Russia—are not particularly interested in the concept of human rights.

A minimalist conception of human rights should be based on Arendt’s “cosmopolitan realism” (Hayden, 2009: 22) which emphasizes mankind’s collective responsibility for resisting extreme evil and, at the same time, highlights the fact that human rights are relatively worthless without “the juridical-political institutions required to protect such rights and achieve justice in the event of grave violations of them” (2009: 20). Arendt’s approach implies a minimalist or “political” concept of human rights based on a “substantive moral principle of membership” (Cohen, 2008: 588). If a state deprives a group of people of the basic requirements which enable them to fight for the recognition of their legal claims, by threatening their lives or denying them due process, their right to membership is radically negated (see Bohman, 2004: 344). A minimum standard resulting from this basic human right to membership is a regime which does not tolerate arbitrary violence against minorities and which provides access to a relatively independent judiciary. If we accept the right to membership, as the focal point of a consensus universalis on globally shared principles of justice, and as the moral basis for justifying humanitarian interventions as SCD, it is not possible to justify a military operation which is only conducted for the purpose of democratization as SCD. This point raises the obvious question of whether the republican agenda can make any difference to the clarification of the legitimacy of humanitarian interventions, compared to the Rawlsian minimalist approach. In terms of practical-political consequences, I think the answer is “no,” because my pragmatically thin interpretation of republican standards on the global level only justifies SCD against serious crimes against humanity. The ideals of non-domination (at the intrastate level) and the right to participation are too strong to justify violent measures for their protection on a global scale—they should merely constitute the moral foundation of a republican foreign policy agenda implemented by democratic states, which should always pursue the long-term goal of a nonviolent regime change in non-democratic countries (e.g. by supporting democratic opposition parties). But in contrast to Rawlsian liberalism, a republican approach cannot use some kind of “respect” for non-democratic regimes to justify this minimalism. It is only for pragmatic reasons that an intervention conducted for the (sole) purpose of democratization can never be considered as a legitimate form of SCD.

Conclusion

I have shown that the justification of a humanitarian intervention considered as SCD is very different from a case in which a state breaks international law not to protect a people from a despotic government, but instead to ensure that the fundamental rights guaranteed by its constitution are not undermined by a condition of international domination or to protest against undemocratic decision-making processes in supranational governance systems. In my view, the republican justification of SCD can only make a practical-political difference in the second case, because the ideals of a non-dominating state and of the right to participation are not “thin” enough to be translated into a compulsory canon of human rights that must generate universal state obligations in a pluralist world. An interpretation of humanitarian interventions as civil disobedience has to accept the Rawlsian premise that this instrument must be limited to “instances of substantial and clear injustice” (Rawls, 1971: 326).

In contrast, a state which violates international law to protect the fundamental rights of the people living in its own territory is allowed to justify its actions with a “thick” republican ideal of non-domination, by arguing that it is obliged to enable its citizens to effectively control state and private interference in their spheres of activity, by institutionalizing “a form of decision-making in which we can see our interests furthered and our ideas respected” (Pettit, 1997: 184) and by guaranteeing social rights, which empower those citizens to use their basic right of participation. If international law, especially international trade law, undermines our capacity to challenge the arbitrary will of more powerful actors, this could be a legitimate “larger” reason for states of the Southern Hemisphere to consider SCD as a method of contesting and, thereby, reforming those legal structures which support the predominance of the rich Northern industrial nations. However, state actions can only be regarded as legitimate SCD if they fulfill specific criteria which I have outlined above. The most important of these criteria is the requirement that governments must defend their actions publicly by referring to common principles of justice and by trying to persuade other states of the rightfulness of their lawbreaking. However, whether a particular form of SCD is legitimate, can only be decided on a case-by-case basis.