Moral Justification of the Normative Dimensions of Sovereignty
Positive Law and Morality
We will now transcend the bounds of positive law and turn to normative political theory. On the one hand, this widens the scope of arguments: political philosophers should in principle feel free to make proposals for reform, even regarding basic principles of existing law. The general reason is that any law must be legitimate: although leaving open to its addressees the motives for compliance, one possible motive must be respect for the law itself. To that end its basic norms have to be compatible with the basic principles of morality. And nothing guarantees a priori that an existing corpus of legal rules and principles does already fulfill that demand.
On the other hand, morality itself provides us with good reasons to take positive law seriously. The ultimate reason is that to overcome any state of nature is a metanorm of political morality. Therefore, to ignore the norms of positive law in the name of a higher moral insight is morally wrong, and not only because of the fallibility of our moral reasoning. In all such reasoning we must take into consideration the integrity of positive law. This is especially important in the case of international law, because more than most national legal systems it is a law in the making. That makes it highly sensitive to political interests and power relations, but perhaps also open to moral insights. Improving international law means enhancing its coherence in accordance with valid principles of political morality (Ladwig 2000).
Now, as already shown, international law has incorporated some basic moral insights that together indicate a remarkable shift in interpreting its ultimate purpose. Sovereignty is no longer seen as absolute and inviolable; it calls for normative qualifications. In order to be justified, it must meet certain standards of good governance. We have identified four components that gain more and more acceptance in the realm of public international law: human rights, rule of law, responsiveness, and public participation. Is there a pattern of reasoned justification that can support these components and explain their internal normative relations? In the following section we will give a sketch of a rights-based approach.
We argue that all humans are entitled to access to institutions that protect their basic rights.23 In that respect, at least, states and other structures of institutions are never ends in themselves. Political authorities are basically legitimate insofar as they are suited and necessary for guaranteeing se?cure, inclusive, and nondiscriminatory access to basic goods each individual is morally entitled to, provided in forms and by means that are themselves compatible with human rights standards. This seems to be a tenable starting point for explaining in a coherent manner the idea underlying the conception of good governance outlined above.
A rights-based approach has four advantages. First, it is already widely accepted in principle, and also anchored in public international law, by means of treaties and custom, some of them even being ius cogens. Consequently, it cannot be reproached for imposing particularistic norms on foreign cultures, at least with regard to basic human rights. Second, it provides a plausible starting point for constructing a framework of moral norms that could orientate further legal reform. Third, it rules out any purely instrumentalist approach of good governance, as favored in certain discourses on economic development. Fostering economic development might be a further reason for adopting a rights-based approach, but basically, realizing human rights is not a mere means, it is a central criterion for successful development (for a similar argument, see Sen 1999, esp. chap. 2). Fourth, it does not conceptually presuppose fully consolidated statehood and is therefore applicable in principle to conditions of fragile statehood as well.
From the point of view of a rights-based approach, states are mere means for the full realization of valid claims of individuals. As such, they are in principle replaceable by other structures of institutions insofar as state authorities lack the adequate means or the will to fulfill their core responsibilities. Even passing over a state’s claims to sovereignty might be required if it is necessary to give individuals what they are entitled to. The international community bears a subsidiary responsibility, and even nonstate actors can be obliged to play a role in securing access to basic goods. As we argue, building and stabilizing institutions that protect basic human rights is a cosmopolitan duty binding each actor who is in an adequate position to do their share. Part of the duty is helping weak governments; another part might be acting in place of them, for example by means of multilevel governance.