Thomas Pogge: A Semi-Practical Approach

The first step of my argument relies on the argument that Pogge, Beitz and Buchanan were critical of Rawls’ decision to cast the extension of his political liberalism to the international order as a law of Peoples rather than a law for persons. As this will not be news to anyone who has followed the debates I move quickly to an exposition of the ways in which they can be seen to move towards a practical approach to global justice. The first focus is on Pogge who, in my view, made the move towards a practical approach much earlier than other cosmopolitans (although for reasons I specify below he is best seen as offering a semi-practical view).

That Pogge is critical of Rawls’ international theory is evident in the early Realizing Rawls (Pogge Reference Pogge1989) and, after the extended Law of Peoples was published, in articles including ‘An Egalitarian Law of Peoples’ (Pogge Reference Pogge1994). Throughout his career he has consistently argued that the state-system is itself a cause of serious injustice – chiefly, but by no means solely, in that it sustains massive socio-economic inequalities. In ‘An Egalitarian Law of Peoples’ he points to the fact that he has been an advocate of a global original position rather than an original position where representatives of Peoples consider principles of international justice, which is Rawls’ strategy. A global original position deals not with a world of peoples but ‘with the world at large, even asking, as Rawls puts it (somewhat incredulously?), “whether, and in what form, there should be states, or peoples, at all”’ (Pogge Reference Pogge1994: 197). Yet, despite a thoroughgoing critique of the ways that Rawls reaches his starting point and of the consequences this has, Pogge consistently moves to put this to one side to engage with a world of states. This is the first move towards a practical approach. Pogge refers to this move as a ‘self-imposed triple handicap’. For the sake of argument he writes:

This move is more than the rhetorical flourish of a scholar who believes their argument will win even under restricted conditions. Pogge often refers to his baseline argument and to the institutional proposals that flow from it as ‘modest’. The moral argument is modest in that it is political rather than metaphysical and in that it is institutional rather than interactional (something that, as we shall see, has important links to his reliance on human rights to give voice to his moral position). The institutional proposals are modest in the sense that their feasibility stems from his choice to set aside his well-founded arguments for a vertical redistribution of sovereignty (away from the state) to focus on modest economic redistributive justice that would have a minimal impact on global economic inequalities while having a major impact on the suffering of the impoverished portion of the planet. Such modesty, we are told, ‘is important if the proposed institutional alternative is to gain the support necessary to implement it and is to be able to sustain itself in the world as we know it’ (Pogge Reference Pogge2002: 205).

I want to focus on the ways in which the moral argument is made modest, as it is here that we find the rationale for working within a state-based legal order and for invoking human rights. Pogge chooses to rely upon what he terms an institutional moral cosmopolitanism, where that is contrasted with an interactional legal cosmopolitanism. It is moral rather than legal because in Pogge’s usage a legal cosmopolitanism is committed to a concrete political ideal of a global society where all humans are fellow citizens of a universal republic (Pogge Reference Pogge2002: 169). It is institutional because it develops principles of justice rather than ethics. He writes:

This approach is, we are told, compatible with the Kantian notion of an obligation to create a comprehensive institutional scheme. Note too the way that injustice is described as that which violates human rights. Pogge acknowledges that there can be many arguments about how best to construct a comprehensive institutional scheme but opts to formulate his argument in terms of human rights partly because it captures what most other variants see as essential and because it provides a shortcut to the meat of his argument. The shortcut is significant not just because it draws on the power of a socially constituted discourse but because it too is modest in that it ‘indicates a reorientation of the sort for which Rawls has coined the phrase “political not metaphysical”’ (Pogge Reference Pogge2002: 57). The word human in human rights is different from the word natural in natural rights in that it does not imply an ontological commitment to human rights beyond the context of the practice he wants to examine. Nevertheless, his description of the practice – of human rights – produces a contextual moral universalism that goes much further than that of Rawls and provides the motor of his argument. The practice, as he describes it, is neutral among comprehensive moral doctrines, confirms that all human beings have the same and equal rights and focuses our attention on the obligations of official agents (primarily but not only the state) to respect, protect and fulfil those rights and, in this, it is a moral universalism that arises in a world of states (Pogge Reference Pogge2002: 57–8). Yet this modest, institutional moral cosmopolitanism has the power to demand (by virtue of the negative injunction that we are not to collaborate in the upholding of coercive institutions) that we reform international legal institutions that cause avoidable and foreseeable harm. Pogge’s modest reference to article 28 of the UDHR suggests an urgent need to reform the international legal order, from the WTO and the UN to the very idea of state-centred sovereignty.

But just how modest and hence practical is his thesis? The modest institutional view coupled with the contextual moral universalism of his account of human rights takes us a long way but there is a problem with his account of the relationship between the international institutional-legal order and his moral theory. I think he underestimates the intransigence of the international legal order (even while being a severe critic of that order) and the problem hinges on his view of the relationship between moral and legal human rights (something both Beitz and Buchanan attempt to remedy (below)). Pogge recognizes the important (but in his view rarely drawn) distinction between moral and legal human rights and states his intention to explicate a moral notion of human rights. In a move criticized by Buchanan Pogge adopts what Buchanan calls the mirroring view that human rights law is meant to give effect to pre-existing moral rights (Pogge Reference Pogge2002: 53, Buchanan Reference Buchanan2013: 14–23). Pogge cites the language of the preamble to the UDHR to substantiate the view that states accept the existence and primacy of pre-existing moral rights (something Buchanan challenges as a misleading declaratory flourish). I will pick up on Buchanan’s injunction that a practical approach should focus on legal human rights without believing they mirror moral human rights below. Here, however, I want to work within Pogge’s argument to explore why his position is impractical in that it confronts but does not overcome the intransigence of international law to this moral view.

Pogge’s critique of the international legal order as it has developed since 1945 is in stark contrast to the promise that Rawls saw in the restrictions on a traditional account of sovereignty (Rawls Reference Rawls1999: 27). Rather ironically it is Pogge’s historical sense of the ways that colonialism and conquest ground contemporary international law that drives this critique. His description of the diplomats who negotiated the structure of the Bretton Woods institutions as ‘hunger’s willing executioners, committing a rather large-scale crime against humanity in our name’ (Pogge Reference Pogge, Pogge and Horton2008: 551) links directly to our shared obligation to reform the institutions that sustain global poverty while facilitating our global economic benefit. Here Pogge’s theory of international law appears to be compatible with critical legal scholarship. Given that the major critique of normative IPT levelled by legal theorists is its lack of historicity (see for an overview Simpson 2018) this might seem promising. However, he does not follow through with this promise. His clear grasp of the existing problems of the international legal order should command a greater scepticism about the force a moral argument that rests on the moral agreement implied by the existence of legal human rights can muster. If human rights law is indeed premised on antecedent moral rights I still doubt that we have the motivation required. I think there is evidence that international law does not, as a matter of practice, rest on a moral consensus that international law ought to be driven by an egalitarian concern with individual human flourishing. International human rights law may be so motivated but not international law in general. If we accept, for the moment, that human rights law is intended to give effect to antecedent moral rights (and I will explore Beitz’s and Buchanan’s argument on why a rejection of this premise is better from a practical point of view below) we still need to think about the relationship between the human rights regime and other elements of international law. Pogge himself, while writing on the subject of the aspiration and reality of international law, notes that it is ‘divided against itself’ (Pogge Reference Pogge, Crawford and Koskeniemmi2012: 373–97). In that essay he points, among other things, to the challenge of the fragmentation of the international legal order, something that ‘prevents the use of log-rolling tactics by the less powerful to achieve equitable reforms and allows the more powerful the opportunity to engage in forum shopping for the most advantageous rules’ (Pogge Reference Pogge, Crawford and Koskeniemmi2012: 374). The proliferation of legal regimes, the way that these regimes protect their jurisdictional boundaries and generate issue-specific institutions, is, Pogge accepts, a real threat to institutional reform, allowing the affluent states to continue to act in ways that fail to help the poor. His only riposte is that international institutional reform is likely to be ‘easier to achieve than equally effective unilateral changes in the conduct of states, corporations and individuals’ (Pogge Reference Pogge, Crawford and Koskeniemmi2012: 392). But if fragmentation is a barrier to institutional reform it is not simply a bureaucratic inhibition. Fragmentation can, and often does, imply competing value systems. For every regime that could be said to have a normative individualism at its heart we can point to others that have, for example, the maintenance of state sovereignty at their core. Here we might think of Christian Tomuschat’s account of the ‘world order treaties’ that provide the global constitution (Tomuschat 1993) or Robert Jackson’s critique of global constitutional arguments in The Global Covenant (Jackson Reference Jackson2000). Pogge’s moral claim is going to have to be immodest enough to demand that antecedent moral human rights ought to inform all of international law. His description of the practice is going to have to sufficiently immodest to claim that states (by virtue of the preambular clauses of the international bill of human rights) do accept this claim. His claim to the practicality necessary to garner the will to make these reforms resides in these arguments and they lack the compelling modesty he sought. Nevertheless the Kantian push to practicality is further developed by later scholarship.

Beitz’s Fresh Start

Beitz opens his 2009 The Idea of Human Rights with the claim that ‘[t]he doctrine of human rights is the articulation in the public morality of world politics of the idea that each person is the subject of global concern’. He continues, quoting Rorty, to assert that human rights have become a fact of the world and goes on to claim that ‘if the public discourse of peacetime global society can be said to have common moral language, it is that of human rights’ (Beitz Reference Beitz2009: 1). Beitz’s intention is ‘to exploit the observation that the human rights enterprise is a global practice’ (Beitz Reference Beitz2009: 10) and it quickly becomes apparent that he believes that in order to do this we need to adopt a distinctively practical approach to the subject. In doing so he argues that,

Such an approach is distinct from naturalistic and agreement theories of human rights and Beitz makes this clear writing,

Immediately we learn that Beitz thinks that putting aside philosophical orthodox approaches in favour of a practical approach enables us to exploit the existence of international human rights law and the public discourse it constitutes. A practical approach must, he argues, do ‘more than notice that the practice exists; it claims for the practice a certain authority in guiding our theorizing’ (Beitz Reference Beitz2009: 10). In order to achieve his goals, we need to recognize that a practical approach is more modest (Beitz Reference Beitz2009: 212) than orthodox approaches – seeking to understand the moral import of human rights as they emerge in the practice of international politics rather than as an independent moral idea. It is this that separates Beitz from Pogge. He is determined to construct a conception of human rights from the practice.

To return to my original framing of the practical approach we have a claim to justificatory modesty, a description of the practice that has some authority in an appropriately modest account of human rights in a manner that gives us the ability to exploit the existence of the practice. The reason he thinks ‘a fresh start’ is needed in the political theory of human rights is because he is not as sanguine as Pogge that human rights represent the articulation of a shared, pre-existing moral commitment to normative individualism and egalitarianism. Human rights practice, he argues,

This pushes him further than Pogge to embrace a more fully practical approach and to a more historical satisfying reading of the moral basis of the major human rights instruments. But grasping this feature of the practice does not cut us off from moral reflection or commit us to a descriptive rather than a normative project. Indeed, done properly a practical approach allows us to harness the power of an enormous normative and institutional framework that is ‘regarded with great seriousness’ to a practice we have ‘prima facie reason to regard as valuable’ insofar as it ‘offers the hope of constraining one of the two main perils of a global political order comprised of independent states’ (Beitz Reference Beitz2009: 11).

Let me begin with Beitz’s account of the practical approach he endorses. Beitz finds his practical approach implicit in Rawls’ Law of Peoples where human rights are key element of a conception of public reason of international society (Beitz Reference Beitz2009: 96). Here human rights perform a special role in qualifying rights respecting states as members in good standing in the society of peoples as a special class of urgent rights that are indispensable to any common good conception of justice. (Beitz Reference Beitz2009: 97–8).

The discursive function that human rights practice is intended to fulfil in the public discourse of international society is a function of how and why it arose. Beitz describes human rights as ‘revisionist appurtenances of a global political order’ (Beitz Reference Beitz2009: 197). Human rights ‘are the constitutive norms of a global practice whose aim is to protect individuals from threats to their most important interests arising from the acts and omissions of their governments’ (Beitz Reference Beitz2009: 197). They are standards for domestic institutions whose satisfaction is of international concern (Beitz Reference Beitz2009: 128). This is how participants in the practice understand human rights. So how do we get from the descriptive to the critical or normative?

Beitz argues that questions of normative import arise at three levels. First,

Beitz constructs a two-level model that understands human rights as institutional protections from ‘standard threats’ to urgent interests. It is a two-level model in that it recognizes that human rights apply in the first instance to the political institutions of states but that they are, as a secondary matter, of international concern (Beitz Reference Beitz2009: 119). Urgent interests are distinct from universal human interests. They, he argues, would be ‘recognizable as important in a wide range of typical lives that occur in contemporary societies’ (Beitz Reference Beitz2009: 110). A ‘standard threat’ is ‘one that is predictable under the social circumstance in which right is intended to operate’ (Beitz Reference Beitz2009: 111). In other words, human rights protect individuals from the predations and failures of their state.

Importantly Beitz thinks that Rawls’ account of human rights is narrower than that we observe in the existing practice. But it is a descriptive narrowness rather than a conceptual one. Beitz looks to the ways that human rights are enforceable in national, regional and international fora and at the many ways in which non-coercive political and economic measures can influence human rights compliance, at how human rights reasons might impel social and political reform and so on (Beitz Reference Beitz2009: 101). But even with this broader view of human rights as a practice Beitz’s approach seems very conservative from a cosmopolitan point of view – something he acknowledges.

In making this argument Beitz appears to be flirting with the outer boundaries of a theory that might be considered cosmopolitan. In describing the practice, he argues that human rights are more than the sum of international human rights law (IHRL). In the global normative order some norms are legal norms and others, like human rights,

The real question surely concerns the weight that an appeal to human rights as a background norm carries in practice and hence what sort of institutional traction that appeal might be expected to generate. Beitz examines debates over anti-poverty rights, the right to political participation and the human rights of women but really does not do much more than show that, despite contestations about whether these ‘hard cases’ are properly to be considered matters of international concern, they really are and that we ought to do something about it. In respect of anti-poverty rights, for example, Beitz shows that we have good reasons to think that poverty is a standard threat to an urgent interest. He can argue that by virtue of this it is of international concern when states cannot or will not meet their obligations to ameliorate poverty. He even goes as far as Pogge, when considering the institutional barriers to the exercise of effective international responsibility, to argue that ‘[t]o the extent that the features of the international structure enable or facilitate patterns of interaction that are objectionable … those in a position to benefit may come under pressure from an additional kind of reason for action, requiring them to reform the structure or compensate for its undesirable effects’ (Beitz Reference Beitz2009: 172). Nevertheless (and accepting the complexity of the causes of poverty) pointing out that there are, in the system, reasons for action available, does not really say much about the weight that competent participants in the practice will attach to them. Beitz concludes:

Beitz appears to derive the normativity of his practical approach from the argument that human rights are more than law – the weight of our reason to act is not settled in reference to the formal sources of law but on the idea of human rights operating as a background norm. But having divested himself of the immodesty of Pogge’s moral philosophy he does not avail himself of the empirical work that goes a long way to elaborating the soft law and political function of human rights discourse. Work on the evolution or ‘humanization’ of ‘humanities law’ in works by scholars such as Ruti Teitel, Theodore Meron, Bruno Simma or work on norm formation and the impact of human rights on practice in social constructivist literature goes a long way to providing confirmation of the background influence of human rights practice and offers some optimism on the ways that this enables human rights claims to operate in the wider global normative order as a special class of urgent reasons for action. Even then the description seems little augmented by the normative modesty of the practical approach. Beitz recognizes that human rights practice occurs not in the abstract but in the context of a broader normative order and in the context of international politics. The first context demands that we see human rights background norms in the context of a broader range of background norms pertinent to international law and politics. The second demands a greater engagement with the political forces that have historically informed and even dominated international politics and human rights practice. On the latter Beitz does engage with questions of the systemic misuse of international norms (including humanitarian and human rights norms) but avers that what is true in practice is not true in principle and thus may not always be true in practice (Beitz Reference Beitz2009: 202–9) It does not follow, he argues, from ‘the fact that law is often bent to the advantage of stronger powers … that there is no basis for regarding some interpretations of legal rules as more reasonable than other’ (Beitz Reference Beitz2009: 211). Without a more powerful normative claim we need more confidence that human rights as an emergent practice is likely to oblige international actors to deliver on the urgent rights they describe. This is something that Buchanan believes he can supply by focusing on the social function of international legal human rights system in the broader context of the international legal order in a manner that is more forcefully prescriptive.

Buchanan on Institutional Moral Reason

Buchanan takes the focus on international law as a practice further still than Beitz. He has long been interested in matters of international law and his Justice, legitimacy and Self Determination (Buchanan Reference Buchanan2004) and a fruitful partnership with Robert Keohane certainly sharpened his institutional focus. His later work – The Heart of Human Rights (Buchanan Reference Buchanan2013) – is intended, in purposeful contrast to a moral philosophy of human rights, ‘to try and make sense of the practice, and especially its legal core, and to do so in a critical way’ (Buchanan Reference Buchanan2013: 5). He argues that while it is correct to say that human rights are a global moral lingua franca it is more accurate to say that international human rights law is the universally authoritative version of the global moral lingua franca (Buchanan Reference Buchanan2013: 7). Buchanan’s turn to law is, he claims, modest in two ways. First in the way it sees the relationship between orthodox philosophical treatments of human rights and his practical approach and second in the way he draws critical normative power from his analysis of international human rights law. Given his insistence on the centrality of legal human rights practice to his task, clearly his description of the practice is of vital importance, but he is confident that in abjuring orthodox moral philosophy for a practical approach he will gain a distinct advantage. Drawing on the power of international human rights law we are able ‘to make appeals to moral motivation without having to engage in foundational controversies or justify substantive moral norms from the ground up’ (Buchanan Reference Buchanan2013: 9). In his earlier work Buchanan describes this benefit as one of moral accessibility.

This requires that the practice has a significant authority in the construction of arguments about the normative character of human rights. His approach ‘is not a once-and-for-all feat of abstract philosophical reasoning but an ongoing process in which institutionalized, public discourse plays an ineliminable role’ (Buchanan Reference Buchanan2010: 91).

Buchanan’s emphasis on human rights law as the core of the practice is as central to his work as it was to Beitz’s search for practicality. He is also clear that there is no ‘folk’ pretheoretical or philosophical theory of moral human rights that enjoys this authoritative status in the practice (Buchanan Reference Buchanan2013: 7). He writes,

His purpose is to seek a justification for the practice – to ask, ‘whether having such a system is permissible or that there is sufficient reason, all things considered, or a moral obligation, to create such a system or to sustain it if it already exists … Is the actual international legal system justified and, if so, in which senses?’ (Buchanan Reference Buchanan2013: 12). He is also clear that he seeks a genuinely moral justification (rather than a modus vivendi justification) and as he does so clearly sets himself on track to pursue a project that is similar to that of Beitz (rather than that of Pogge or others who adopt what he calls a mirroring view of human rights). In rejecting the mirroring view he notes that the preambular rhetoric of the major human rights instruments implies that IHRL is intended to realize pre-existing moral rights but argues that

The task is to determine, on the basis of an understanding of the characteristics of the system of IHRL, what function it fulfils and then assess ‘the moral propriety of those functions, the systems efficiency in performing them and the means by which it does so’ (Buchanan Reference Buchanan2013: 21–2). Here then we have, in outline, the three features of a practical approach I outlined in the introduction. He claims a justificatory modesty in which the practice has authority. He relies on a description of that practice to ground his search for moral motivation and thus gain institutional traction. Buchanan claims a greater and more nuanced engagement with the law than Beitz and, as we shall see, more prescriptive force.

In turning to an assessment of Buchanan’s practical approach we must begin with his description of the practice, picking out a few of the more salient features. Buchanan picks up on the same features as Beitz – pointing to the role IHRL has in limiting sovereignty, the ascription of duties to the state (and as a secondary matter, the international community). As an important preface to a later argument he notes that IHRL ‘exists within a context of legal pluralism with respect to its own status vis-à-vis domestic law’ (Buchanan Reference Buchanan2013: 26). This is so because of the many different constitutional arrangements for incorporating international law into the many domestic legal systems. He notes that a human rights system in which ratification led to immediate domestic effect would ‘differ significantly’ from the status quo and goes on to invite us to consider ‘a more radical’ alternative.

He recognizes that this is not a description of the system but notes (referencing the ius cogens prohibitions on torture and slavery) that not all existing law is binding on states only if they have consented to it. This is a theme he immediately returns to. Describing the basic idea of the system of IHRL as the development of ‘a regime of international law whose primary function in so to provide universal standards for regulating the behaviour of states towards those under their jurisdiction, for the sake of those individuals themselves, conceived as social beings’ (Buchanan Reference Buchanan2013: 27), Buchanan claims that this description fits the ‘most accurate information about what the system is like and about its origins, while at the same time construing the system in a morally attractive way’. He continues:

Two further features of Buchanan’s account of the system are especially important. The first is that the system has a status-egalitarian function and the second is that it has a well-being function and thus the system is anchored in the thought that the state must perform a basic welfare state function for all. It is these features of the system that come to occupy centre-ground in Buchanan’s argument.

Before I get to them it is worth looking at the approach that Buchanan adopts for his task. His goal is, he writes, the modest one of providing a framework for the neglected task of justifying the international legal core of human rights (Buchanan Reference Buchanan2013: 42). He adopts a ‘pluralistic justificatory methodology’ which essentially rejects the mirroring view and proceeds in three stages.

In taking up the first element Buchanan, like Beitz, shows that IHRL arises to deal with one of the morally unacceptable consequences of the existence of a system of sovereign states. However, in direct reference to Beitz, he argues that he makes a much stronger point here. Beitz is characterized as merely describing this feature of the system. Buchanan, on the other hand frames it as the moral justification of the system (Buchanan Reference Buchanan2013: 45).

This is the core of Buchanan’s argument and provides the authority to make the strong claims he goes on to make. If we skip briefly to his conclusions, we get a sense of what his justification is intended to carry. Having made his case Buchanan returns to the theme of consent and legitimacy and points to the limitations that a state’s right to withhold consent or to consent with reservations can have on the system (Buchanan Reference Buchanan2013: 280). He explores ideas of an expanded category of ius cogens norms, supermajority ratification imposing universal obligation, and points to innovations such as a proposed EU constitution allowing for supermajority voting and the attempt to make the Responsibility to Protect (R2P) a required response to humanitarian wrongdoing (Buchanan Reference Buchanan2013: 282). He recognizes that the international order as it exists is resistant to such moves and that the system lacks the institutional safeguards to prevent predation by the powerful. Here he makes perhaps the most ambitious argument of all. Buchanan argues that a more expansive conception of state’s duties under human rights is morally mandatory so that it becomes morally required that we develop ‘institutional resources that would make a more expansive conception of duties not only feasible but morally acceptable’ (Buchanan Reference Buchanan2013: 283). The moral power of the justification for human rights law drives a further argument that demands that we make the institutional infrastructure such that it can more effectively meet our obligations. Here what Buchanan calls an ‘ecological view of institutional legitimacy’ demands that we deprive states of what, elsewhere, he calls a legitimacy veto (Buchanan Reference Buchanan2010). This clearly outstrips Beitz’s modest proposal by some distance.

The key to this is to be found in Buchanan’s justification of the status-egalitarian element of IHRL. This happens in the third part of the first stage of Buchanan’s justificatory scheme. He writes, ‘we need to determine whether achieving the social recognition of every person’s basic equal status is of such importance that international law should be harnessed to help achieve it’ (Buchanan Reference Buchanan2013: 134). His is first a moral claim about the Principle of Equal Status – that all humans have the same and important basic moral status – and partly a claim about what the purpose of the law is (Buchanan Reference Buchanan2013: 135). On the first issue he writes

He does, however, argue for the principle rather than presuming it and he does so in unmodified Kantian terms (Buchanan Reference Buchanan2013: 136–9). In his earlier work Buchanan rests his case on what he terms a natural duty of justice argument (Buchanan Reference Buchanan2004: 85) or a ‘modest objectivist view’ (Buchanan Reference Buchanan2010: 51) and it is here that we need to explore the claim to modesty. There is a curious mix of empirical and moral claims in play in all these instances of Buchanan’s argument. In the 2004 work we learn that his argument relies ‘on the premise that there is a natural duty of justice even if there were no global basic structure, or any interaction whatsoever among individuals across borders … the natural duty of justice is not a rock-bottom basic moral principle, though it is close to it’ (Buchanan Reference Buchanan2004: 86–7). In the later work he writes of the Equal Status Principle, ‘it is simply an expression of the increasing salience of the idea that is arguably one of the most momentous improvements in human morality, the abandonment of various forms of tribalism in favour of a genuinely cosmopolitan outlook’ (Buchanan Reference Buchanan2013: 137). But it is not the increasing salience of the idea just as it is not the existence of the global basic structure that lend Buchanan’s position its authority. In both cases there is a foundational commitment to a moral premise described in the 2004 work in the language of Kant’s second formulation of the categorical imperative and in the later work as simply Kantian.

I do not intend to dispute the modesty or otherwise of Kant’s moral philosophy (and I grant Buchanan’s arguments against those who think that human rights as understood here do a violence to a reasonable moral pluralism). However, I do want to ask about the relationship between Kantian morality and the practicality of Buchanan’s project. Buchanan’s position in The Heart of Human Rights does see the Principal of Equal Status as a basic moral principle – about as rock-bottom as it gets. A greater realisation of this principle is required insofar as we can create institutions that restrict abuse of the system by the powerful either through predation or by establishing parochial interpretations of norms as universal. To a large degree the sovereign and consent-based state system arose precisely to limit this sort of abuse just as human rights law arose to restrict one key potential downside of having such a system. The problem is that most attempts to push the boundaries of IHRL towards a fuller instantiation of the Principle of Equal Status founder on fears of this type of abuse. The fears are not ungrounded. In The Heart of Human Rights Buchanan’s examples of potential progress are a global constitution with provision for a supermajoritarian lawmaking and a strong R2P. In other works, he has proposed reform of the United Nations Security Council – and where this proves impossible the establishment of a committee of rights-respecting states (Buchanan and Keohane 2004), the weakening of the prohibition on the use of force, and a unilateral right to intervene in the face of humanitarian atrocity (Buchanan Reference Buchanan2010, Reference Buchanan2004). In theory all might prove to be positive steps towards a greater protection of human rights if accompanied by institutional reform and the sorts of ex ante and ex post accountability frameworks he imagines as part of his institutional moral view. However, the structural and political challenges to such reform belie his assertiveness. The international legal order is conservative in its nature. Humanitarian interventions breed reasonable suspicion of trojan horse politics; EU constitutionalism provokes nationalist reaction; ius cogens norms link only very weakly to prescribed responses to violations of those norms and those are themselves limited by key sovereignty-respecting norms. All this because the international legal order is, at its heart, an ‘equalitarian regime’ (Reus-Smit Reference Reus-Smit2005), one that does not admit of hierarchy. Human rights restrict the challenges this presents but to claim that the justification for the human rights legal system is such that the heterarchical international legal order must give up the protections of sovereignty seems unlikely to gain the institutional traction being sought. The doctrine of sovereign equality is centre stage in a legal order that is designed to be more morally acceptable than its predecessor in that it refuses to recognize the old distinction found the law of nations between civilized and uncivilized peoples. Buchanan’s proposal threatens to reinstate that distinction with human rights being the justification for an expanded right to the use of force, removal of consent, the destruction of the UN charter institutions. Despite the frustrations of states having a ‘legitimacy veto’ over progressive human rights policies, it strikes me that the tools of reform are too deadly to be practical.

The problem lies, I think, in the relationship between description, moral justification of the Principle of Equal Standing as part of a justification of human rights, and the prescription that human rights discipline all of international law. The status egalitarian element of human rights may be its justificatory essence but what is the justificatory essence of international law in general? What, in the context of the practice as we find it, is the relation between the two justificatory principles? It may well be that under ideal conditions (where we can realize a non-coercive order that lives up to the Principle of Equal Standing) human rights do trump international law. But existing threats to peace, let alone justice, from powerful states suggests that we are far from ideal conditions and so practicality demands a different balance be struck.