All actually and possibly affected interests

The first, ‘all actually affected’ approach emphasizes the effects that globalization and global economic integration can have on autonomy, as well as other vital interests. This approach is closely associated with such cosmopolitan democrats as David Held (Reference Held1995, Reference Held2004) and Daniele Archibugi (Reference Archibugi2008),Footnote ³ and it has generated a broad literature in the past two decades (see Smith and Brassett Reference Smith and Brassett2008; Schaffer Reference Schaffer2012). In the approach, decision effects on participatory outsiders are seen as having greatly expanded and intensified in recent years. This is said to be a result of increased interdependence between states and thus higher cross-boundary sensitivity to decisions (Koenig-Archibugi Reference Koenig-Archibugi2012), an increasing proportion of trade and other rules being decided beyond direct democratic oversight, at the suprastate level; and increasing effects on domestic polities from decisions made by trans-state firms and other economic actors (Held Reference Held2004, Ch. 6; Archibugi Reference Archibugi2008; Marchetti Reference Marchetti2008a, Reference Marchetti2008b; Falk and Strauss Reference Falk and Strauss2011; see Gould Reference Gould2004, 210–16; Pogge Reference Pogge2008, 190–92). Each is cited as reason to extend democratic decision boundaries, in service of enabling appropriate participation and democratic control.

Practical proposals for expansion include the further development of regional parliamentary bodies and the creation of a global parliament. The latter is often conceived as a directly elected second chamber operating alongside the United Nations General Assembly (Held Reference Held2004, Ch. 6; Archibugi Reference Archibugi2008; Marchetti Reference Marchetti2008a, Reference Marchetti2008b). Its powers would be necessarily limited at first, but they would be expected to increase over time, ultimately to include significant ability to bind through legislation. At the horizontal, state-to-state level, proposals include one by Koenig-Archibugi to set a GDP-based formula for a percentage of a state’s domestic representatives to be elected by outsiders. He estimates it should be about 27% in the US case, based on its economic power and impacts beyond its borders (Koenig-Archibugi Reference Koenig-Archibugi2012, 463, fn. 19).

Such all actually affected accounts can offer important insights, in particular for the challenges they pose to some common claims for restricting participation to the domestic sphere (Dahl Reference Dahl1989, 119–31). As a comprehensive approach to setting participation boundaries, however, all actually affected will face some significant objections. The first concerns a paradox faced by intrinsic accounts generally. Within such accounts, the people are understood to be the ultimate source of political power. It is their collective will which ultimately legitimates coercively backed decisions – an intrinsic requirement of their being empowered to lead appropriately autonomous, self-chosen lives. Yet, the question of who ‘the people’ actually are in that polity cannot be decided democratically. As many recent commentators have discussed, current members cannot simply be asked to collectively choose whether they are the rightfully configured people, because that would presume that they already are the people for the purposes of such decisions, and so on to infinite regress (Yack Reference Yack2001; Goodin Reference Goodin2007; Näsström Reference Näsström2007, Reference Näsström2011; Abizadeh Reference Abizadeh2008, Reference Abizadeh2012, 8; Miller Reference Miller2009; Zurn Reference Zurn2010; Schaffer Reference Schaffer2012, 327–28; see Whelan Reference Whelan1983; Song Reference Song2012). This regress problem has crucial implications. If the people cannot be the ones to determine who properly belongs to the sovereign people, then nor can they clearly be seen as the ultimate source of decision-making authority in an intrinsic approach. Questions will remain about whose autonomy it is appropriate to enable through participation, and these cannot be settled merely through declaring that boundaries should be accepted as found (see Näsström Reference Näsström2007, 625–26).Footnote ⁴

All actually affected rejects such a declaration and seeks to dramatically expand the set of participants. This will not, however, address the paradox. Consider that decision effects will depend in large part on the geographic boundaries drawn around the body making the initial decisions. That is, the set of those affected by decisions, and therefore presumed to be appropriately included in subsequent decisions, is conditioned by the size, composition, interests and other factors specific to the set of initial decision makers. Yet, the boundaries around the initial decision makers are taken as found. Thus, the original paradox has not been addressed. It has not been determined who properly belongs to the initial decision making set, or who properly has participation rights in existing intergovernmental institutions above the state.

This extension or reinforcement of the paradox is cited by such commentators as Robert Goodin as one reason to problematize existing boundaries even further, and adopt an ‘all possibly affected’ intrinsic approach. Since conceivably any person could be affected in the salient ways, depending on the initial decision boundaries, on who is setting the agenda, and on the decisions actually issuing from it, all would appear to have standing to be included in all decision making processes (Goodin Reference Goodin2007, 55). Two important challenges remain, however. First, we can note that, because agendas are to remain so open in the all possibly affected variant, it cannot be determined in advance whether any conceivable decision would have strong implications for autonomy, or whether it would more generally affect the most urgent interests or the most trivial interests of any set of individuals. Nor would it be possible to determine who would be most deeply affected by any particular decision. Any possible agenda, and any decision arising from it, could affect any person, and possibly very deeply (see Marchetti Reference Marchetti2008a, Reference Marchetti2008b, 91, fn. 20; Miller Reference Miller2009, 216–17). Thus, the approach may not be able to give much practical guidance in setting participation boundaries.Footnote ⁵

Second, there is an implicit but more essential challenge to the all possibly affected approach, around whether extending the franchise to individuals actually will express the intrinsic value intended. All affected accounts in general would expand participation as a means of showing adequate respect for individual autonomy – or in Goodin’s specific account, autonomy and other vital interests. Simply expanding the set of those possessing the franchise, however, or who are entitled to membership in agenda-setting bodies, does not ensure that autonomy will be enabled or protected. Those who found themselves in a persistent voting minority could see their own aims routinely thwarted in the democratic process, however equal their ability to participate in it (Beitz Reference Beitz1989, 155–63; Dworkin Reference Dworkin2000, Ch. 4; Caney Reference Caney2005, 155; see Christiano Reference Christiano2006b, 103; cf. Agné 2010; Song Reference Song2012, 45).Footnote ⁶ This problem could again be magnified with a global extension of participatory institutions. It can be asked, for example, how far being granted representation in some democratic global assembly would protect or enable the autonomy of those in very small states facing specific common threats, such as climate change-induced rises in sea level (cf. Agné 2010). Being granted participation rights, only to then be routinely outvoted, would seem to do little for actually enabling autonomy, on which more below.

All possibly subjected

This second global-intrinsic approach would reject an emphasis on decision effects, in part from concerns that affect may give a person some standing to claim redress for harms but not actual participatory standing (Abizadeh Reference Abizadeh2012, 12; see Beckman Reference Beckman2009, 46–47; see also López-Guerra Reference López-Guerra2005, 222–24). Instead, the emphasis here is on ensuring appropriate participation for those who are actually or potentially subjected to political coercion, meaning ‘direct physical force, invigilation via agents authorized to used physical force, and threats of punitive harm’ (Abizadeh Reference Abizadeh2012, 12). Such a coercion emphasis is longstanding in the literature on domestic democracy (see Dahl Reference Dahl1989, 124–26). In its global extension, in particular Abizadeh’s (Reference Abizadeh2008, Reference Abizadeh2010, Reference Abizadeh2012) highly systematic elaboration in a series of complementary arguments, the same logic is applied to authoritative coercion which crosses state boundaries. All who stand to be coerced should be enabled to participate.

Abizadeh’s starting point is the democratic paradox: the problem noted above with determining democratic participation boundaries through democratic participation. He sees this as strong reason to view the democratic polity as in principle unbounded in an intrinsic approach. All should simply be presumed to be part of the polity. Thus, any coercion which may serve to restrict autonomy, including that used to set and maintain state boundaries, must be justified to all who are subject to it (Abizadeh Reference Abizadeh2008, 44–48, Reference Abizadeh2012). Following Raz, (Reference Raz1986, 372–78), Abizadeh sees autonomy as obtaining when an individual: ‘(1) has the appropriate mental capacities to formulate personal projects and pursue them, (2) enjoys an adequate range of valuable options, and (3) is independent, that is, free from subjection to the will of another through coercion or manipulation’ (2008, 39–40). Significantly, he sees potential subjection to coercion as omnipresent in the current global system. Any person, for example, could conceivably choose to enter any country and face coercive exclusion from it. Thus, a democratic process is required to render any exclusions – and the ensuing restrictions of autonomy – legitimate, and that process could extend to the fully global level.

I will bracket concerns about whether border controls are coercive per se (see Miller Reference Miller2010; cf. Abizadeh Reference Abizadeh2010). More essential here is whether coercion and the restriction of autonomy are the factors actually driving participatory inclusion in the account, and ultimately whether the problem of persistent minorities has been overcome. In terms of inclusion, Abizadeh would give ‘a greater participatory say to foreigners for whom entry actually represents a valuable option, an even greater say to those for whom the option of entry is necessary to have an adequate range of valuable options, and perhaps the greatest say to citizens themselves’ (2008, 58). This approach to inclusion would thus be consistent with the Razian understanding of autonomy, which again emphasizes valuable life options and the ability to make use of them.

Yet, any strong emphasis on the last claim, that current citizens should have the most say over their own borders, would seem at odds with the core tenets of all possibly subjected. If current citizens are given the greatest decision input, presumably because of the greater actual coercion to which they are subject, then that would simply ignore the democratic paradox. Present state-backed coercion to which citizens are subjected is a result of their membership in the state. It cannot be cited as conclusive proof that they were appropriately counted as members – and others excluded from membership – in the first place. As noted for the all actually affected approach above, the extent of affect or coercion on individuals would be deeply conditioned by already existing boundaries. If the point of the exercise is to determine where boundaries should be set, then effects arising from existing boundaries cannot independently tell us whether those are indeed the boundaries that should have been set or should now be maintained.

If, as is more consistent with the overall approach, an emphasis on actual present coercion is rejected, then the starting point again is a polity that is unbounded in principle, where all persons are understood to be equally potentially subject to coercion. The fact of that potential coercion would qualify all for the possibility of participatory inclusion, or more precisely, inclusion in collective decisions about who is to be included (Abizadeh Reference Abizadeh2008, 64, fn. 46, Reference Abizadeh2010, Reference Abizadeh2012). So, in practice, inclusion should be determined by how valuable it is to promoting individuals’ autonomy, in particular those for whom ‘the option entry is necessary to have an adequate range of valuable options’ (Abizadeh Reference Abizadeh2008, 58). If that is the case, then several steps have been taken in the direction of an instrumental approach. Participatory inclusion will be dictated by how needy the potential entrants are, and how far their inclusion is necessary to addressing their needs. It will not be decided by how far it would enable participation per se; or by whether the entrants are being subjected to actual coercion, the extent and intensity of which again will be conditioned by existing polities’ boundaries and characteristics.

That said, the explicit presumption remains in Abizadeh’s and other coercion-focused accounts (Agné 2010) that inclusion will not mean addressing such deprivations directly, but permitting would-be entrants to participate in decisions about who should be included in the polity. Here, the problem of persistent minorities recurs. If the needy were included in collective-entry decisions only to find themselves routinely the losers on such decisions, then little would have been done to address the deprivations which gave them the initial priority for inclusion. Abizadeh does not want to simply affirm such an outcome, or the exclusion of persistent minorities more generally. He posits a fundamentally deliberative democracy, in which ‘those subject to political power must be able to see their political institutions and laws as the outcome of their own free and reasoned public deliberation as equals’ (Abizadeh Reference Abizadeh2008, 41). Deliberation, of course, is important to democratic governance for many reasons. Here, however, we can simply note that individuals’ deliberatively informed preferences must at some point be aggregated. Given the likely intensity of the preferences at stake for those in affluent receiving countries, it is not unlikely that the outcomes would be the same as in some non-deliberative process. The persistent minority of needy hopeful entrants could continually see themselves outvoted and excluded, however formally equal their standing in the decision-making set, and however valuable the option of full inclusion could be to them.

Alternately, if we imagine that somehow vast numbers of persons are seeking to enter some very small, very rich state and vote to open its borders immediately, the result being that its governing capacities are overwhelmed, the minority problem could be reversed. If prior steps are taken to avoid this outcome, then the account will again have moved beyond an intrinsic approach, to one like the rights-based instrumental approach which begins with limits on majority rule. The broader point would be that, even on their own terms, intrinsic accounts focused on enabling individual autonomy face a core problem of coherence. If binding majority rule plausibly leads to an expression of autonomy as self-governing for the winners, it always also raises the possibility of enforcing heteronomy on persistent losers. As Christiano expresses it, in such accounts, ‘If each person must freely choose the outcomes that bind him or her then those who oppose the decision are not self-governing. They live in an environment imposed on them by others. So only when all agree to a decision are they freely adopting the decision’ (2006a).Footnote ⁷

Given that consensus can be expected for few if any collective decisions, all decisions will bind some losers. If they are persistent losers, perpetually excluded from substantive legislative benefits in a polity dominated by men, or a specific race, caste, religion, etc., this offers a serious challenge to the idea of democracy as self-legislation, or more broadly as enabling individuals to lead autonomous, self-chosen lives (Bohman Reference Bohman2007, 6–8; see Arneson Reference Arneson2009). The same challenge would obtain at the global level, and probably with greater force, given a greater potential range of persistent minorities.Footnote ⁸ Thus, the global intrinsic accounts’ claims to offer a coherent justification for democratic rule, and also for democratic expansion, are cast into doubt.

Thresholds and rights chains

In practical terms then, the rights-based instrumental approach would recommend a relatively high threshold of constitutionalized individual rights, including again some robust rights to non-discrimination. It is not possible here to set some precise threshold for which rights, or which interpretations of specific rights, should be so viewed as falling below the threshold and outside the limits of collective decision making. Two things can be said, however. The first is to reinforce again the importance of insider’s wisdom or insight, specifically in setting thresholds for specific rights, or enabling individuals to highlight ways in which agendas and possible decisions from them may have unforeseen implications for weakening rights protections. Democratic deliberation, augmented by mechanisms to ensure the inclusion of the poor and others whose voices are often muted in public dialogue, certainly would have a role to play in publicizing the insights of all persons in a polity regarding the identification, provision and appropriate interpretations of rights protections.

The second regards the significance of rights chains. That is, even the most fundamental rights likely will require legally actionable secondary and tertiary rights to be adequately secured. A right to life, for example, likely will entail a right to adequate housing, meaning housing that provides protection from the elements, animals or insects and diseases they bear, easy predation by other persons, etc. That in turn entails a right to secure legal tenure in housing, which implies rights, or at least entails a need for, appropriately empowered – and appropriately restrained – police and legal bodies capable of enforcing those rights, and so on. It cannot be claimed that rights to housing are strictly necessary to a right to life, given that it is clearly possible to live out of doors and survive, as millions of homeless persons around the world do (see Pogge Reference Pogge2009). It would be more difficult, however, to argue that such persons are adequately protected from standard, generalizable threats to vital interests, especially exposure to elements and predation. Thus, the adequate protection of even the most fundamental rights will require the creation of institutions capable of enacting and protecting secondary, tertiary and quaternary rights directly linked to the core right (Caney Reference Caney2007a, 154–63; Nickel 2007, 87–90).

Overall, such rights chain logic provides an important counter to claims that constitutionalized rights represent little more than the opinions of some about objective value (Waldron Reference Waldron1999, 164–87; Zurn Reference Zurn2010, 211–13; see Agné 2010, 388). Constitutional protection of the rights entailed in the chain is strongly implied, and they are to some extent off the decision table. In general, the balance would be tipped to protections, and those would be expected to become more firm the closer to vital interests any specific issue is located. Many areas of collective decision making, of course, are not so clearly related to core rights and would appropriately remain above the threshold. Democratic procedures here could be justified by epistemic or character-based instrumental reasons, possibly complemented by some intrinsic reasons (see Dworkin Reference Føllesdal2011, 390–91). Thus, the rights-based instrumental approach is fundamentally focused on rights protections, but not solely. It would, however, be vital to ensure that rights-based challenges could be heard to claims that a specific issue is above the threshold and is appropriately choice sensitive.Footnote ¹⁰ A partial model is provided at the regional level by individuals’ direct standing to file challenges in the European Court of Human Rights,Footnote ¹¹ and on a more narrow range of issues, including some pertaining to rights against unjust discrimination, in the European Court of Justice.

Integration and rights protections

How, then, does this rights-based instrumental account give guidance on democratic inclusion, specifically on the core question of where the geographic boundaries of participatory rule should be set? The account, in fact, should give us strong reason to pursue the creation of broader institutional and participatory boundaries. Such extension would be crucial for meeting the two aims noted above, of reliably providing rights coverage for individuals, and reliably obtaining compliance with duties related to rights protections.

We can note first a presumption that, in a rights-based approach, duties to help secure universal individual rights for all persons will in principle fall on all other persons. This is similar to Abizadeh’s claim above that, within an autonomy-based intrinsic approach, the democratic paradox gives reason to view the polity as, in principle, unbounded. The presumption in a rights-based approach is consonant with a well-known argument by John Simmons (1979, 143–56). He argues that an account focusing on rights and corresponding natural duties – understood as duties to others based in their plain humanity – will face an unavoidable ‘particularity problem’. It will not be possible to demonstrate why any particular attention should be paid to protecting the rights of domestic co-participants, or any other set of persons smaller than the global, if it is indeed individuals’ plain humanity which gives them standing in a rights framework.

I take this not as a problem so much as a description of the natural starting point for geographic boundary setting within a rights-based instrumental approach. Advocates of such an approach who wish to limit it to the domestic or perhaps regional sphere must identify reasons why the duties corresponding to rights held by all persons do not fall on all persons. So, for example, Estlund would claim that present state boundaries should be presumed to set the limits of participation in an instrumental frame, because they represent the ‘effective and available means of securing the discharge of duties’, including ones of rescue to those in need, and fair share duties to sustain common institutions (2008, 148). There are reasons to think, however that such duties, and the rights corresponding to them, will be routinely underfulfilled in a system of competitive, ‘separate but equal’ sovereign states, and thus that institutional and participation boundaries should be extended where feasible.

These reasons are traceable primarily to a set of interconnected biases, naturally arising in a states system. The biases serve as powerful forces working against distributions not only of resources and opportunities to outsiders, but also against extending fully fair terms of trade and investment, equitable aid conditionalities, responsibilities to address climate change and other threats. Biases include an electoral or stakeholder one, where domestic leaders have strong incentives to tend to the interests of their own constituents first and routinely ignore those of outsiders. Self-interest and a more subtle own-case bias arise at the level of the collective or polity. Polities are left to be the judges of their own obligations in a global system lacking a neutral suprastate judge or forum where salient decisions can be challenged from outside the states taking them. Thus, they face few systematic challenges to acting from plain self-interest, and in fact tendencies to do so are reinforced by accompanying tendencies to presume that one’s own case is right when one is left to judge it – a dynamic explored by Locke ([1690] Reference Locke1980, 12), among others (Mayerfeld Reference Mayerfeld1998; Buchanan Reference Buchanan2004, 293–99).

These and other biases against fully recognizing and accommodating the interests of non-compatriots are inherent to a system in which states remain the ultimate judges in their own cases. They represent continuous barriers especially to obtaining full compliance with duties to ensure adequate rights protections to all persons (Cabrera Reference Cabrera2010, Chs 2–3; see also Caney Reference Caney2005, 159–64; Pogge Reference Pogge2008, Ch. 7; Mayerfeld Reference Mayerfeld2011).Footnote ¹² Thus, there are strong, rights-based reasons to expand institutional and participatory boundaries, bringing more persons within institutions capable of providing appropriate rights coverage and obtaining compliance with duties corresponding to rights. Whether these reasons might be trumped by some other moral claims is taken up in third section below.

Possible institutional expansions

The institutional implication is decidedly not that we are left with a stark, dichotomous choice between accepting the existing states system and creating some all-powerful global government, as commentators such as Risse (2012, Ch. 16) would suggest. Familiar concerns around a Kantian ‘soulless despotism’, global instability and possible tyranny (see Song Reference Song2012) surely would attend such a set of global institutions, were they somehow to be imposed in the near term and state boundaries simply erased from the map. Rather, a rights-based instrumental approach gives reason to promote the progressive expansion of participatory political institutions, as feasible and within the limits of respect for individual rights.

The ultimate aim would be a system of institutions in which adequate coverage and compliance would obtain for all. Thus, as with global intrinsic accounts, especially those in the all actually affected camp, the ultimate institutional aim would be relatively strongly empowered regional and global democratic political institutions capable of enacting appropriate binding legislation on states and sub-state units. Significantly more emphasis, however, would be placed in the rights-based account on the more comprehensive package of constitutionalized rights. Held, for example, would argue for the constitutionalization of only those individual rights that are directly related to enabling democratic participation (1995, 190–201). This springs in part from his intrinsic justification: respect for autonomy demands democracy, and democratic participation demands certain enabling rights. The rights-based account would consider a wider range of rights, including again non-discrimination and related free movement rights. It would stress the importance of making such rights actionable in multiple layers and types of courts, as well as enabling other accountability mechanisms.

In the relatively near term, there would be some significant possibilities for mitigating biases through the creation of democratic supranational institutions. The European Union represents a partial exemplar – only partial because of its incomplete democratization. That is, while individuals within states can vote for individual Ministers of the European Parliament representing geographic districts within member states, there is no directly elected EU president, and the interests of individual member-state governments continue to hold powerful sway in EU institutions overall, especially in terms of policy agendas (see Føllesdal and Hix Reference Føllesdal and Hix2006). Individual democratic participants have relatively limited opportunities to share their insider’s insight and otherwise engage in potentially significant political communication at the suprastate level. That said, the EU does provide a range of accountability mechanisms that can serve to reinforce rights protections, and it gives individuals direct opportunities to lodge legal challenges on some key rights issues. It also represents an invaluable living laboratory for studying opportunities for, and challenges to, shared rule above the state.

The rights-based approach would support full EU accession for Turkey on grounds that it would be highly likely to strengthen rights protections, including economic rights related to free movement opportunities and enhanced distributional transfers across borders, as well as some social rights and rights to free expression.Footnote ¹³ Such support would be contingent on any candidate state meeting some rights-salient institutional and feasibility conditions, discussed below. As noted, however, the recommendation would not be that Turks simply be included in a collective decision procedure on their own inclusion (Agné 2010). That could do little more than give them persistent minority status, as with the needy would-be migrants above. Likewise, the rights-based alternative would recommend the deepening and political transformation of other regional entities such as Mercosur, the North American Free Trade Agreement and African Union, were that to be plausibly rights enhancing. There also would be, over time, some obligations on the part of those in richer suprastate regions to support the development of institutions in poorer ones, lest the ‘separate but equal’ states system be transformed into a similarly unequal system of have and have-not sets of regional institutions. That concern, with the presumption that the biases could be replicated at a higher level in such a world of regions, would give reason to pursue integration between regions where possible.

Finally, if deep political integration were indeed possible between states and regions over the long term, then the creation of fully global political institutions, including a global parliamentary body, would be advocated as important to further protecting and sustaining rights, though again a more comprehensive set of rights than the global intrinsic authors generally envision. In the near term, an important implication of a rights based approach is that the development of global democratic bodies may not be the most urgent item on the agenda. If rights protections were better served through strengthening state capacities, further developing and consolidating regional human rights courts or the International Criminal Court, and reforming and enhancing United Nations oversight of individual states, then such reforms would have priority. Unlike in a global intrinsic approach, there would be no in-built moral requirement to pursue participation per se above the state. Rights reforms would not, however, represent an appropriate stopping point, given the potential instrumental importance of such participation. There would be strong reason to pursue the creation of suprastate democratic institutions over time, including at the global level.

National sentiment

This objection holds both that shared national sentiment is a necessary condition of participatory rule, and that it provides the most appropriate basis for setting participation boundaries. The first, necessity claim (Miller Reference Miller1995, Ch. 4; see also Song Reference Song2012),Footnote ¹⁴ has been challenged by numerous commentators (Føllesdal 2010; Weinstock Reference Weinstock2010; Koenig-Archibugi Reference Koenig-Archibugi2011, 527), and it will not be pursued in detail. A more central concern is with whether a national sentiment approach, or any related approach focused on drawing participatory boundary lines around persons who share some set of characteristics (Miller Reference Miller2009), can overcome the democratic paradox.

There would in fact be myriad difficulties in identifying traits – language, religion, culture, historical emphases – that are shared sufficiently exclusively among a group of persons to justify rigid exclusions from participation (Abizadeh Reference Abizadeh2012, 2–5). The traits would not be self-evidently unique to one group of persons. Judgments would have to be made about who appropriately belongs to the group. This would obtain even were the ultimate polity to be an ethnocracy composed along straightforwardly ethnic or racial lines. For example, what would be appropriate inclusion for those of mixed parentage? Do they qualify for membership at half blood, one-quarter, or at ‘one drop?’Footnote ¹⁵ Who decides who is qualified to decide on insiders and outsiders? Who decides on those deciders, and so on? If we move away from ethnocracy, as David Miller (Reference Miller2009), Michael Walzer (Reference Walzer1983) and virtually all recent defenders of solidarist boundary drawing have sought to do, then the challenges are multiplied many times over. Infinite regress would seem to obtain especially when a broader set of ascriptive characteristics, none of which is presumed to be strictly necessary, is to be used to try to delineate participatory insiders from outsiders (see also Agné 2010, 385–86).

Associative accounts

What, then, about accounts which focus not on ascriptive cultural or ethnic characteristics, but on shared associative ones? Ypi, for example, argues that appropriately configured domestic democratic contexts should be preserved for ways in which they promote civic education and could inculcate moral cosmopolitan values (2012, Ch. 6). For Christiano, the domestic sphere is a morally distinctive common world where the interests of individuals are extensively intertwined through their joint and comprehensive subjection to law and institutional regulation (2006b, 85, 100–1, 2012, 74). Given this deep interdependence, he argues, those who share a state can be said to have a ‘roughly equal stake’ in decisions it makes, and thus to have a strong claim to a democratic say. Existing suprastate institutions do not create such common worlds, however, and thus there is no strong imperative to extend democratic boundaries.

Arguably this objection, which is most directly salient to global intrinsic approaches, could be directed at the rights-based instrumental approach. Some such features of associative life, that is, might justify giving strong priority in participation and overall rights protections to compatriots. Mathias Risse, for example, argues against extending strong principles of distributive justice globally, given that individuals who share a state are collectively subject to comprehensive coercion and engaged in deep forms of reciprocity (2012, 36–40; see also Nagel Reference Nagel2005). Similar reasons might be offered against a strong imperative to extend institutional participation boundaries on rights-based instrumental grounds.

In response, it can be noted first that there is nothing inherent in associative arguments to prevent the gradual development of suprastate institutions capable of providing a common world, etc., as Christiano (Reference Christiano2006b, 83) acknowledges. It could be claimed that the European Union, with its vast set of uniform laws, large-scale redistribution via ‘cohesion funding’ (European Commission 2013), and its increasingly significant and directly elected parliament, already has traveled some distance toward the creation of a common world. For the same reasons, it might be appropriately seen as an institutional site of distributive justice, and a potentially very significant site for the strengthening of comprehensive rights protections through integration, as described above.

More crucially here, there is a potential tautology at the heart of associative claims for the restriction of participation or principles of distributive justice to the domestic sphere. This is similar to the problem noted above, of extending boundaries based on decision effects, but without first justifying the boundaries that condition those effects. Associative accounts emphasize virtues produced in a democratic domestic sphere, as well as facts of reciprocity, joint coercion and interdependence in that sphere. Such current facts, however, do not necessarily justify past and continuing exclusions from participation or distributions. It must first be demonstrated that the setting and maintenance of particular boundaries, and the exclusions from membership and collective goods that such boundaries entail, was and is morally defensible (see also Buchanan Reference Buchanan2004, 35–37; Caney Reference Caney2008).

I will focus on facts of coercion and reciprocity. We can note again that many claims about the moral significance of state-backed coercion or comprehensive regulation are, at root, claims about restrictions on autonomy. Individuals are coerced; they live under extensive schedules of laws, institutional rules and regulations, and this is said to contribute to their standing to participate or to receive robust, justice-based distributions. Yet, associative accounts also make a clear distinction between authoritative state coercion and plain oppression. The latter is seen as a straightforward wrong. The former is to be employed in service of ensuring domestic stability, the production of key social goods and overall effective and fair institutions. Coercion is, in fact, an intrinsic feature of such institutions, without which they could not provide the beneficial goods sought. If this is so, however, the case for treating participatory standing or distributive priority as due compensation for limitations of autonomy is significantly weakened. Submitting to state coercion would be, rather, a step toward securing goods that all are presumed to need (see Pevnick Reference Pevnick2008, 401–2). It could not so easily be held up to would-be members as proof that insiders have earned their exclusive privileges through seeing their autonomy restricted, making sacrifices, etc.

In terms of reciprocity, the claim is that insiders have sacrificed not to the state but for one another. The intuitions here can be strong: one good turn deserves another. It is indefensible to take from others without ultimately giving something in return. It can be noted, however, that many compatriots do not engage in actual cooperation at the levels implied. They may be handicapped, deeply economically disadvantaged, or just ideologically disinclined to participate, and thus their actual contributions may be minimal. Further, an emphasis on reciprocity within a given set of persons cannot independently justify exclusions from that set. It cannot demonstrate that that system within which the reciprocity and exclusions have arisen is itself defensible.

Likewise, citing the cooperation and reciprocity that can exist between compatriots cannot itself speak to the defensibility of the broader global system in which states are embedded (see Tan Reference Tan2004, 28–29, 66–67). Given that billions of persons continue to face severe poverty in that system, and to see their core rights precariously protected at best (United Nations 2013), any strong claim that its defensibility has been established will face steep challenges. Thus, unless we can be certain that the initial move to exclude is defensible, a moral shadow is cast over subsequent claims that exclusions are just when grounded in current coercion, reciprocity, or civic virtues. Ultimately, such claims would seem to do little but restate the paradox in the frame of domestic associations: those who already are included, coerced or stakeholders are the ones who should be empowered to determine who should be so included, coerced or seen as a stakeholder, because they are the ones already included, etc. It does not in itself justify refusing outsiders the opportunity to enjoy the same benefits through placing themselves within the same framework of coercion and regulation.

This is not to suggest that we must adopt some form of stringent first-person impartiality, where any special consideration shown to parents, children or other intimates must be justified according to a universal morality.Footnote ¹⁶ Nor does it recommend immediately throwing open the gates of all states – a move that even firm advocates of freer immigration would reject (see Seglow Reference Seglow2005). Rather, it challenges claims for exclusions based only in present societal relations. By themselves, such relations do not appear to justify the exclusions from participation or broader institutional protections that are the norm in the current system. Nor would they appear to justify strong claims to territorial rights or rights of occupancy, such as those posited by Anna Stilz (Reference Stilz2009). She argues that those whose current residency is integral to their goals and personal relationships, and who have not themselves committed wrongful acts to take up residence, hold firm rights of occupancy and related rights to exclude. Yet, each of these conditions could obtain for the children of a generation which invaded the territory, or which committed some form of ethnic cleansing to claim it (Miller Reference Miller2012, 255–56). The defensibility of the current occupancy cannot be settled without taking such acts into account. Likewise, the exclusions from participation and institutionally backed rights protections must be justified against the background of the broader normative questions (see also Shachar Reference Shachar2009). The importance of enabling individuals to help protect their own rights, and the biases noted above which contribute to rights underfulfillment, would constitute strong reasons to challenge claims to full territorial exclusion rights.

Finally, we can note the broader challenge implied to any strong claims for state sovereignty or self-determination. The latter claims in particular are rooted in notions of popular sovereignty, or the autonomous choices of a discrete, cohesive, self-legislating people (see Beitz Reference Beitz2009; Goodhart and Taninchev Reference Goodhart and Taninchev2011). Yet, we cannot simply say that each sovereign, democratic people should be left to determine its own fate if we cannot say with confidence that existing participation boundaries are appropriately drawn. A rights-based instrumental approach would not give strong emphasis to collective self-determination claims in general. It would again presume that all persons are the people, in principle. It would seek to expand participation according to that principle and in service of rights protections, while it also would be cognizant of political constraints and the many related challenges to expansion in the near term.

Neo-colonialism and sovereignty

If territorial rights, along with presumed self-determination rights, are to be so open to challenge, does this lead a rights-based approach to perverse consequences? For example, would it dictate the imposition of some neo-colonial rule on states or regions where rights protections are precarious? Justifications of that kind were common enough in 19th century and earlier colonialism or imperialistic control. European powers often cited their ‘civilizing mission’ to assume care for the bodies and souls of persons in scores of less affluent or less powerful countries (Kohn Reference Kohn2012). Yet, any re-imposition of such governing forms would be at odds with some of the fundamental assumptions in the rights-based approach. First, there is little reason to believe that those within a state that is suddenly subjected to colonial or imperial rule would be afforded adequate opportunities to participate. Even if the form of control were intended to be more benign, though still presumably not fully participatory, acute problems would arise around opportunities to share insider’s insight and, in general, opportunities to chasten and challenge in order to protect their own rights (see Sen Reference Sen1999, 328–29, fn. 7.)

Further, any such wholesale imposition would seem likely to generate a potentially violent backlash, with important implications for weakening existing rights protections. It could simply set the stage for ongoing civil unrest. Finally, a neo-colonial intervention by another state would be problematic in part because of the biases noted above. Such a state acting singly would not represent the sort of neutral judge presumed necessary to overcome the biases. We can consider here the issue of humanitarian intervention, which raises some of the same concerns. There is strong reason to believe that general decisions on intervention are not best left to a single state. In fact, the creation of a more neutral and more disinterested judge than the current UN Security Council likely would be a crucial step toward more defensible outcomes, given the self-interested influence often wielded by the five permanent members (Brock Reference Brock2006).

Important questions remain, however, around the powers to chasten and challenge that current citizens of regional projects should be able to exercise on questions of integration. In the Turkish case, for example, we can ask whether those within current EU member states should have referendum powers to decide on accession. Former French President Jacques Chirac (1995–2007) had, in fact, backed an amendment to the French Constitution requiring a public referendum on the accession of any candidate state whose population was 5% or more of the total EU population – a guarantee that French voters would have a direct say on Turkey. That amendment was dropped, with Sarkozy’s support, in 2008, over concerns that it could hamper the accession of other candidate states (Euractiv 2008). At present, approval is required for accession from the European Commission, which negotiates with potential members toward ensuring they meet the Cophenhagen Criteria, benchmarks for democratic governance, economic stability and rights protections. When the criteria are deemed satisfied and negotiations concluded, the accession must still be approved by the European Parliament and each existing member state, though in many states the mechanism does not involve a direct popular vote.

As should by now be apparent, a rights-based instrumental approach would raise concerns about empowering individual state governments or their citizens to act as the final judges in their own cases about obligations to expand participatory and institutional boundaries. Such an expansion in the Turkish case stands to enhance vital economic, social and civil rights for millions of persons. In this case, the course recommended would be one where obligations to help protect such rights are foregrounded, and where a range of actors could share their insider’s insight during the accession and negotiation process, but where the final decision would hinge on a neutral assessment of progress on the benchmarks, rather than a simple majoritarian process. Again, that does not mean that economic feasibility, ‘accession fatigue’ or other practical challenges such as Turkey’s strained relations with Cyprus should be blithely ignored or will easily be overcome. Rather, it highlights the course of action that would be prescribed within a rights-based instrumental approach, as well as a position that would be important to advocate in continuing practical dialogue on accession procedures.

What, then, of consulting those living within the accession candidate state? This seems more challenging. If there is little expressed support in polls, etc., for accession, then the spectre of neo-colonialism could again arise, of dominion imposed through unwanted inclusion. On the other hand, a persistent minority – say the ~14 million Kurds in Turkey – as well as the impoverished and otherwise excluded in that state, could benefit greatly from the access to resources and life opportunities, as well as the democratic consolidation and civil rights enhancements, that full accession could bring.Footnote ¹⁷ I will suggest that, the stronger the expressed public opposition to accession, the greater the danger of weakening rather than strengthening overall protections through accession, at least in the near term. The rights-based instrumental approach would not recommend integration again if it were likely to dramatically weaken rights protections. It would recommend the extension of some free movement opportunities to those in the candidate state, as well as a continuation of pre-accession aid, especially that aimed at enhancing rights protections. Both types of measures would go some way toward addressing concerns around persistent internal minorities, while reasons in favor of accession could be highlighted in continuing formal dialogue.