Recognitional legitimacy and the state system

Philosophy and Public Affairs

Volumn 28, Issue 1, 1999, Pages 46-78

  Buchanan, Allen ^a  

^a NONE

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EID: 0007317402     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.1999.00046.x     Document Type: Article

References (41)

1. For accounts of what the criteria for recognitional legitimacy are, rather than what they ought to be, see, for example, Antonio Cassese, Self-Determination of Peoples: A Legal Appraisal (Cambridge: Cambridge University Press, 1995), pp. 37-100;
2. Christian Tomuschat, ed., Modern Law of Self-Determination (Dordrecht: Martinus Nijhoff Publishers, 1993);
3. Nii Lante Wallace-Bruce, Claims to Statehood in International Law (New York: Carlton Press, 1994), pp. 19-92;
4. and W. Ofuatey-Kodjoe, The Principle of Self-Determination in International Law (Cambridge, MA: Nellen Publishing Co., 1977), pp. 1-180.
5. For examples of authors who sometimes raise moral questions about recognitional legitimacy or whose views on justified intervention have implications for recognitional legitimacy, but who do not develop a systematic account, see Lee C. Buchheit, Secession: The Legitimacy of Self-Determination (New Haven, CT: Yale University Press, 1978);
6. Fernando Teson, Humanitarian Intervention, 2d ed. (Irvington-on-Hudson, NY: Transnational Publishers, 1992), pp. 81-100;
7. and David Luban, "Just War and Human Rights," Philosophy & Public Affairs 9, no. 2 (winter 1980): 160-81. Teson's view is probably closest to the justice-based account of recognitional legitimacy offered in this paper, but his discussion does not explore the distinction between the recognitional legitimacy of states and of governments; nor does it examine the relationship between legitimacy as justifiable enforcement and legitimacy as the right to be obeyed. Also, Teson does not include a nonusurpation condition as an explicit element of recognitional legitimacy. Finally, Teson does not distinguish between minimal and maximal standards for justice as a condition of recognitional legitimacy or between teleological and rights-based arguments for criteria for recognitional legitimacy.
8. I use scare quotes around "rights-based" to indicate a deep reservation about the term, so far as it might convey the false view that rights-statements are moral axioms, that is, primitives. On my view rights-statements are best understood as conclusions of complex arguments concerning certain interests and the moral importance of protecting them. Nonetheless, the term "rights-based" is sufficiently entrenched that I will use it as it is characteristically used, to indicate a contrast with strictly consequentialist reasoning, that is, with reasoning about what is right or wrong that assumes that the right is that which maximizes the good.
9. I use the term "teleological" in an effort to avoid the even more misleading term "consequentialist." By "teleological" reasoning I simply mean reasoning that presents something, in this case an institutional rule, as being desirable or justified by virtue of the fact that it contributes to some end. Endorsing teleological reasoning in this sense does not entail a commitment to consequentialism as a metaethical view, that is, the thesis that the good can be identified independently of the right and that the right is whatever maximizes the good. I include the scare quotes simply to call attention to the term, in hopes of avoiding any misidentification of this kind of reasoning with consequentialism.
10. As discussed below, judgments of recognitional legitimacy are also applied to governments. In addition, recognition is also accorded or withheld from insurgent movements on some occasions. The focus of this article is recognitional legitimacy of states and, derivately, governments. The issue of recognition for insurgent movements deserves separate treatment.
11. Wallace-Bruce, Claims to Statehood, p. 51. According to some international legal scholars there was a brief and perhaps partial departure from the purely descriptive modern criterion during the latter part of nineteenth century, when some European powers enunciated the standard that only "civilized nations" qualified for recognition. This tendency was repudiated in the Montevideo Convention and frequently in state practice up to the present time. Moreover, it can be argued that the "civilized nations" standard differs in from the normatively demanding criteria for recognition argued for in this article in at least one important sense: the "civilized nation" standard was understood to function within a conception of recognition as purely discretionary on the part of states granting recognition.
12. Gerit W. Gong, The Standard of "Civilization" in International Society (Clarendon Press: Oxford, 1995).
13. James Crawford, The Creation of States in International Law (Clarendon Press: Oxford, 1979).
14. C. H. Alexandrowicz, "The Juridical Expression of the Sacred Trust of Civilization," American Journal of International Law 65, no. 1 (January 1971): 175.
15. Thomas D. Grant, "Defining Statehood: The Montevideo Convention and Its Discontents," Columbia Journal of International Law 37, no. 2 (1999): 403-57.
16. Gerhard Von Glann, Law Among Nations: An Introduction to Public International Law, 7th ed. (Boston: Allyn and Bacon, 1996), pp. 68-69.
17. In discussing the case of Rhodesia, a prominent international legal scholar concludes that "systematic and institutionalised discrimination might invalidate a claim to statehood." Malcolm N. Shaw, International Law, 4th ed. (Cambridge: Cambridge University Press, 1997), p. 146.
18. Thomas M. Franck, "The Emerging Right to Democratic Governance," American Journal of International Law 86, no. 1 (January 1992): 46-91.
19. It can be argued that it is no longer true that states are the only entities that have standing to participate in the development of international law. Nevertheless, even if other actors, including in some cases nongovernmental organizations, do participate, states still play a dominant role in the development of international law.
20. John Rawls, "The Law of Peoples," in On Human Rights: The Oxford Amnesty Lectures 1993, ed. Stephen Shute and Susan Hurley (New York: Basic Books, 1993), pp. 42-82.
21. Allen Buchanan, "Justice, Legitimacy, and Human Rights," in The Idea of a Political Liberalism: Essays on Rawls, ed. Victoria Davion and Clark Wolf (Totowa, NJ: Rowman & Littlefield, forthcoming).
22. John Rawls, "The Law of Peoples," pp. 68-71.
23. Joshua Cohen, "A More Democratic Liberalism," Michigan Law Review 92, no. 6 (1994): 1503-46.
24. T. M. Scanlon, "Contractualism and Utilitarianism," Utilitarianism and Beyond, ed. Amartya Sen et al. (Cambridge: Cambridge University Press, 1982), pp. 103-28.
25. For an insightful critical examination of these arguments for human rights, see James Nickel, Making Sense of Human Rights (Boulder: Westview Press, 1987), pp. 82-119.
26. John Rawls, Political Liberalism (New York: Columbia University Press, 1993), pp. 54-59.
27. I borrow the term "internal legitimacy" from Ronald Sanders (though he uses it in a quite different sense, to refer to the perceived legitimacy of the state by its citizens.
28. A. John Simmons, Moral Theory and Political Obligation (Princeton, NJ: Princeton University Press, 1979).
29. For a valuable presentation of this argument for democracy as a requirement of justice, see Thomas Christiano, The Rule of the Many (Boulder: Westview Press, 1996).
30. For an excellent critical analysis of the meaning of the democratic peace hypothesis, the evidence for it, and the major criticisms that have been directed against it, as well as a biblography on the issues, see Bruce Russett, Grasping the Democratic Peace: Principles for a Post-Cold War World (Princeton, NJ: Princeton University Press, 1993).
31. Rawls, "The Law of Peoples," p. 29.
32. See, for example, "CSCE Document of the Copenhagen Meeting of the Conference on the Human Dimension," 1990, which states that "respect for human rights is an essential factor for peace." International Legal Materials 29 (1990): 1306.
33. Rawls, "The Law of Peoples," p. 73.
34. For excellent criticisms of the empirical premises of the Hobbesian Realist view, see Charles Beitz, Political Theory and International Relations (Princeton, NJ: Princeton University Press, 1979), pp. 13-52;
35. Anne-Marie Slaughter-Burley, "International Law and International Relations Theory: A Dual Agenda," American Journal of International law 87, no. 2 (April 1993): 48-50;
36. and Andrew Moravscik, "Taking Preferences Seriously: A Liberal Theory of International Politics," International Organization 51, no. 4 (autumn 1997) 513-53.
37. For a more detailed discussion of the natural duty of justice, see Allen Buchanan, "The Internal Legitimacy of Humanitarian Intervention," Journal of Political Philosophy, forthcoming 1999.
38. Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977), pp. 86-108.
39. Rawls, "The Law of Peoples," pp. 42-43.
40. "The Law of PeoplesIbid., pp. 56-57.
41. In a work in progress entitled Justice, Legitimacy, and Self-Determination I take up that larger task.