Complying with Declarative Clauses

In the next few chapters, I shall provide an account of the rights and obligations which erstwhile belligerents are justified in imposing on one another via such agreements. For now, let us assume that a given peace agreement is both (at the very least) substantively justifiedATC and procedurally just. On what grounds are its parties under an obligation to comply with its terms? The source of the obligation depends on whether the treaty clauses are declarative, specifying, or de novo. Consider declarative agreements first. In so far as they merely state belligerents’ independently justified rights and duties vis-a-vis one another, belligerents are under a duty to comply in virtue of a general duty to do what justice requires, which in turn is grounded in the principle of fundamental equality. The fact that belligerents agreed to confer those rights and impose those obligations on one another does not place them under an additional duty to comply with the agreement qua agreement. By analogy, Andrew does not acquire a special obligation to keep his promise to Barbara, whom he has no justification whatsoever for killing, not to kill her: his obligation is not to kill Barbara, period.

Note that this is so even if Andrew promises not to kill Barbara as a means to secure her compliance with grievously unjust demands. Suppose that Andrew says to Barbara whom he is sexually assaulting at gunpoint, ‘if you stop resisting I will not kill you, I promise’. And suppose that, after he has finished raping Barbara—a rape made easier by Barbara’s non-resistance—he does kill her. It would be odd to say that Andrew did not just wrong Barbara by raping and killing her but also by defaulting on his promise. This is because although he uttered the words ‘I promise’, he did not in fact make a promise. At the very least, he did not make a binding promise—one by which he voluntarily imposed on himself an obligation which he did not previously have. Since one can (definitionally) default only on binding promises, Andrew cannot be described as defaulting. By parity of reasoning, a belligerent who undertakes via a peace treaty not to invade its erstwhile enemy in exchange for the latter’s willingness to pay extortionate (and thus unjust) reparations, and who then defaults on its undertaking as soon as payment is received, is guilty of the wrongdoings of, first, making that demand in the first instance and, second, carrying out an unwarranted aggression. It is not guilty (in my view) of the additional wrongdoing of defaulting on the agreement.

As this point, it has often been objected to me that enshrining independently justified obligations in a peace agreement gives additional moral weight to those obligations, in two different ways. First, it provides signatories with an opportunity to signal to the world at large that they enjoy the status of contracting parties with whom one can make peace. By way of reply, however, it does not follow from the claim that an agreement or clause thereof has a particular function that it is more binding on duty-bearers in virtue of having that function.

Second, and contrary to what I argued above, some might think that undertaking to do ф when one is in any case under a duty to do it does raise expectations in such a way that defaulting on the undertaking renders the failure to do ф morally worse than if one had not so bound oneself. Suppose that A undertakes by treaty not to invade B without just cause. A’s willingness to endorse the treaty induces B to spend less on its defence capabilities than it would have done had A not made that commitment. Five years later, A invades B. Its act of invasion seems morally worse than if it had not committed itself by treaty not to invade B, precisely in so far as it made it harder for B to defend itself effectively.

But we need to know more about A to assess this case. Either its leaders knew when signing and endorsing the treaty at t1 that they would default five years later at t5, or they had not formed that intention then but subsequently changed their mind. In the first case, they are guilty of manipulating B into making their invasion at t5 more successful. In the second case, they are guilty of violating B’s sovereignty rights, period. Either way, A is not under an obligation not to invade B which it did not have before making the agreement. In so far as promissory and relevantly similar obligations are obligations of that kind, we cannot account for A’s wrongdoing by appealing to the wrongfulness of defaulting on promises. To see this, suppose that A enlists C’s help to invade B at time t5: theirs is a joint invasion to which they contribute equally. C was not a signatory to the treaty at t1. Yet, it does not commit a less grievous wrongdoing by invading B than A does. To claim otherwise is to hold, inter alia, that combatantsA are liable to greater defensive harm than combat- antsC, and that C’s leaders are liable to greater punishment post war than A’s leaders, for the crime of invasion. But this does not seem right. To be sure, they are liable to some degree of punishment for having deceitfully weakened B’s defensive capacity. But they would also be liable to punishment for having weakened B ante bellum by, e.g., hacking into its IT infrastructure and scrambled communication systems between units. What justifies the imposition of that kind of punishment is the act of wrongfully increasing someone’s vulnerability to one’s wrongful attacks—not the invasion itself, and thus not the breach of the non-aggression clause.

 
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