Coercion is necessary to protect rights, including human rights. Protecting rights requires a political organization that respects and promotes respect for the rights of all members of society. Many rights must often be coercively enforced if respect for them is to be generally expected. There must be a power that not only respects but also protects the rights of citizens by requiring all citizens to respect them, prohibiting citizens from taking actions that would violate them, and punishing citizens who fail to honor these prohibitions. While there are forms of coercion that do not involve physical force, force seems necessary for any widespread and effective coercive system for protecting rights, including human rights, given that individuals are often moved by various considerations to violate them. In this essay, I will discuss coercion that involves physical force (and the threat of such) and consider the agent of coercion to be the state.
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The distinction between respect for and protection of rights reflects Henry Shue’s point that the duties corresponding to a right include both the nondeprivation of what the right guarantees individuals (what I call the rights’ being respected or not violated) and protection of the right against the holders’ suffering such deprivation (what I call the rights’ being protected). (He includes a third obligation, one of aid, if the right is neither respected nor protected.) See his Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, 2nd ed. (Princeton, NJ: Princeton University Press, 1996). Note that legal arrangements to protect rights can involve tort law as well as criminal law.
While threatening the use of force can be an instrument to deter other states from violating their citizens’ rights, in examining HI in this essay, I will not directly address the deterrent use of force.
Shue, Basic Rights.
While the protection of rights is normally an obligation, I ask only if HI is permissible. The reason, in my view, is that the morality of the use of military force is an all-things-considered matter that cannot be determined by the moral requirement to protect rights alone.
Carla Bagnoli, “Humanitarian Intervention as a Perfect Duty: A Ka ntian Argument”, in Terry Nardin and Melissa Williams (eds.), Humanitarian Intervention (New York: New York University Press, 2006), p. 117.
Bagnoli, “Humanitarian Intervention”, p. 118.
Some authors criticize contemporary accounts of just war theory, such as Michael Walzer’s Just and Unjust Wars (New York: Basic Books, 1977), for their legalistic reliance on the idea of sovereignty. These authors point out that pre-modern accounts of just war emphasize achieving human goods instead of respecting sovereignty. So, an approach based on these earlier accounts may avoid the criticism in this paragraph. See, for example, Joseph Boyle, “Traditional Just War Theory and Humanitarian Intervention” and Anthony Coates, “Humanitarian Intervention: A Conflict of Traditions”, both in Nardin and Williams (eds.), Humanitarian Intervention.
One exception to this is Boyle, “Traditional Just War Theory”, pp. 49–50.
John Rawls, in The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), introduces a fictional, nonliberal nation, Kazanistan, that is non-democratic and hierarchical, but is nonaggressive and recognizes many of the individual rights recognized in a liberal state, in particular those that are basic human rights.
I will assume, though it is controversial, that it makes sense to balance rights violations and rights protections in this sort of way.
This is akin to the feature of traditional just war theory requiring that, to be justified, a war satisfy the conditions of both just cause and proportionality.
For example, in the name of “family values” some would deny the state access to the inner workings of the family in order to protect the male privilege that is the flip side of the rights violations of the women involved. Others would endorse an increase in state power to interfere in families to root out that old form of privilege. This is, I take it, the import of the feminist slogan, “the personal is the political”.
Harry Krause, Family Law in a Nutshell, 2nd ed. (St. Paul, MN: West Publishing, 1986), p. 116.
Krause, Family Law, p. 196.
Daniel Kofman refers to the view that HI is unlikely to succeed it protecting rights as “feasibility skepticism;” see his “Moral Arguments: Sovereignty, Feasibility, Agency, and Consequences”, in Thomas Cushman (ed.), A Matter of Principle: Humanitarian Arguments for the War in Iraq (Berkeley, CA: University of California Press, 2005), p. 131.
Walzer, Just and Unjust Wars, pp. 53–54.
I ignore in this discussion the fact that the state and the nation are two different things.
Walzer, Just and Unjust Wars, p. 101. This argument strikes me as ad hoc. Was the political community broken in Nazi Germany during the Holocaust? Empirically, it seems not. One could stipulate that when genocide is occurring, the community had broken down in a moral sense, but then the argument becomes question-begging.
All along, I have been writing as if the agent of HI is an individual state, but this need not need be the case. An HI can be authorized and/or undertaken by a regional association (as with NATO in Kosovo) or the United Nations (as with the intervention in Somalia). In many cases, this would be a morally preferable arrangement, were it, in the circumstances, possible. Indeed, the increasing feasibility of this option may well be an indication of the extent to which international law is moving in the direction of regarding sovereignty as not providing legal protection of a state from intervention when it violates the rights of its citizens. It may be the beginning of the evolution of legal authority for HI.
The line, though it is characterized in terms of three particular cases, Rwanda, Iraq in 2003, and Kazanistan, is meant to be general. The three cases are examples only.
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Lee, S.P. (2008). Coercion Abroad for the Protection of Rights. In: Reidy, D.A., Riker, W.J. (eds) Coercion and the State. The Philosophical Foundations of Law and Justice, vol 2. Springer, Dordrecht. https://doi.org/10.1007/978-1-4020-6879-9_12
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