Can Institutions Have Responsibilities?: Collective Moral Agency and International Relations (Global Issues)

Global Issues Series General Editor: Jim Whitman This exciting new series encompasses three principal themes: the interaction of human and natural systems; cooperation and conflict; and the enactment of values. The series as a whole places an emphasis on the examination of complex systems and causal relations in political decision-making; problems of knowledge; authority, control and accountability in issues of scale; and the reconciliation of conflicting values and competing claims. Throughout the series the concentration is on an integration of existing disciplines towards the clarification of political possibility as well as impending crises. Titles include: Roy Carr-Hill and John Lintott CONSUMPTION, JOBS AND THE ENVIRONMENT A Fourth Way? Malcolm Dando PREVENTING BIOLOGICAL WARFARE The Failure of American Leadership Toni Erskine (editor) CAN INSTITUTIONS HAVE RESPONSIBILITIES? Collective Moral Agency and International Relations Brendan Gleeson and Nicholas Low (editors) GOVERNING FOR THE ENVIRONMENT Global Problems, Ethics and Democracy Roger Jeffery and Bhaskar Vira (editors) CONFLICT AND COOPERATION IN PARTICIPATORY NATURAL RESOURCE MANAGEMENT Ho-Won Jeong (editor) GLOBAL ENVIRONMENTAL POLICIES Institutions and Procedures APPROACHES TO PEACEBUILDING W. Andy Knight A CHANGING UNITED NATIONS Multilateral Evolution and the Quest for Global Governance W. Andy Knight (editor) ADAPTING THE UNITED NATIONS TO A POSTMODERN ERA Lessons Learned Kelley Lee HEALTH IMPACTS OF GLOBALIZATION (editor) Towards Global Governance GLOBALIZATION AND HEALTH An Introduction

Nicholas Low and Brendan Gleeson (editors) MAKING URBAN TRANSPORT SUSTAINABLE Graham S. Pearson THE UNSCOM SAGA Chemical and Biological Weapons Non-Proliferation Andrew T. Price-Smith (editor) PLAGUES AND POLITICS Infectious Disease and International Policy Michael Pugh (editor) REGENERATION OF WAR-TORN SOCIETIES Bhaskar Vira and Roger Jeffery (editors) ANALYTICAL ISSUES IN PARTICIPATORY NATURAL RESOURCE MANAGEMENT Simon M. Whitby BIOLOGICAL WARFARE AGAINST CROPS

Global Issues Series Series Standing Order ISBN 0–333–79483–4 (outside North America only) You can receive future titles in this series as they are published by placing a standing order. Please contact your bookseller or, in case of difficulty, write to us at the address below with your name and address, the title of the series and the ISBN quoted above. Customer Services Department, Macmillan Distribution Ltd, Houndmills, Basingstoke, Hampshire RG21 6XS, England

Can Institutions Have Responsibilities? Collective Moral Agency and International Relations Edited by

Toni Erskine Lecturer in International Politics, University of Wales, Aberystwyth, UK

Editorial matter, selection and introduction © Toni Erskine 2003 Chapter 2, Chapters 4–7, Chapters 9–12 © Palgrave Macmillan Ltd 2003 Chapters 1, 3 and 8 © The Carnegie Council 2001 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The authors have asserted their rights to be identified as the authors of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2003 by PALGRAVE MACMILLAN Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N.Y. 10010 Companies and representatives throughout the world PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN 0–333–97129–9 hardback ISBN 1–4039–1720–5 paperback This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Can institutions have responsibilities?: collective moral agency and international relations/edited by Toni Erskine. p. cm. – (Global issues series) Includes bibliographical references and index. ISBN 0–333–97129–9 (cloth) 1. International organization – Moral and ethical aspects. 2. International relations – Moral and ethical aspects. 3. Responsibility. I. Erskine, Toni, 1969– II. Global issues series (Palgrave Macmillan (Firm) ) JZ1318.C358 2003 172⬘.4—dc21 10 9 8 7 6 5 4 3 2 1 12 11 10 09 08 07 06 05 04 03 Printed and bound in Great Britain by Antony Rowe Ltd, Chippenham and Eastbourne

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Contents Notes on Contributors

vii

Acknowledgements

x

Introduction Making Sense of ‘Responsibility’ in International Relations: Key Questions and Concepts Toni Erskine

1

Part I Identifying Moral Agents: States, Governments, and ‘International Society’ 1

2

3

Assigning Responsibilities to Institutional Moral Agents: The Case of States and ‘Quasi-States’ Toni Erskine

19

Moral Responsibility and the Problem of Representing the State David Runciman

41

Moral Agency and International Society: Reflections on Norms, the UN, the Gulf War, and the Kosovo Campaign Chris Brown

51

Part II

Obstacles and Alternative Questions

4

Collective Moral Agency and the Political Process Frances V. Harbour

5

Constitutive Theory and Moral Accountability: Individuals, Institutions, and Dispersed Practices Mervyn Frost

6

When Agents Cannot Act: International Institutions as ‘Moral Patients’ Cornelia Navari

v

69

84

100

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Contents

Part III 7

8

NATO and the Individual Soldier as Moral Agents with Reciprocal Duties: Imbalance in the Kosovo Campaign Paul Cornish and Frances V. Harbour

119

The Anti-Sweatshop Movement: Constructing Corporate Moral Agency in the Global Apparel Industry Rebecca DeWinter

138

Part IV 9

10

12

Hard Cases: Apportioning Blame

The Responsibility of Collective External Bystanders in Cases of Genocide: The French in Rwanda Daniela Kroslak

159

The United Nations and the Fall of Srebrenica: Meaningful Responsibility and International Society Anthony Lang, Jr.

183

Part V 11

Hard Cases: Assigning Duties

Conclusions

On ‘Good Global Governance’, Institutional Design, and the Practices of Moral Agency Nicholas Rengger Global Justice: Aims, Arrangements, and Responsibilities Christian Barry

Index

207

218

238

Notes on Contributors Christian Barry is editor of Ethics & International Affairs and directs the programme on Justice and the World Economy at the Carnegie Council on Ethics and International Affairs. He has been a contributing author to UNDP’s Human Development Report for the past three years. His recent articles include ‘The Ethical Assessment of Technological Change: An Overview of the Issues, Journal of Human Development (2001), ‘Access to Medicines and the Rhetoric of Responsibility’ (with Kate Raworth), Ethics & International Affairs (2002) and ‘Redistribution’, Stanford Encyclopedia of Philosophy (2003). Chris Brown is Professor of International Relations at the London School of Economics. He is author of International Relations Theory: New Normative Approaches (1992), Understanding International Relations (1997; 2nd ed. 2001) Sovereignty, Rights and Justice (2002) and editor of Political Restructuring In Europe: Ethical Perspectives (1994) and, (with Terry Nardin and N. J. Rengger) International Relations in Political Thought: Texts from the Greeks to the First World War (2002). Paul Cornish is Director of the Centre for Defence Studies at King’s College, University of London. He was previously Newton Sheehy Lecturer in International Relations at the Centre for International Studies, University of Cambridge and NATO Research Fellow 2000–02. His publications include The Arms Trade and Europe (1995), British Military Planning for the Defence of Germany, 1945–50 (1996), Controlling the Arms Trade: the West versus the Rest (1996), and Partnership in Crisis: the US, Europe and the Fall and Rise of NATO (1997). Rebecca DeWinter is a PhD candidate at the American University’s School of International Service in Washington, DC, where her two areas of specialization are International Political Economy and Ethics and International Affairs. She was formerly the Programme Associate to Amnesty International USA’s Human Rights and the Environment Programme. Toni Erskine took up the position of Lecturer in International Politics at the University of Wales, Aberystwyth in 2002. Until that time, she was British Academy Postdoctoral Fellow at the Centre of International Studies, University of Cambridge. Her ongoing British Academy vii

viii Notes on Contributors

Postdoctoral project focuses on the theoretical and practical implications for international relations of extending the concept of moral agency from individuals to formal organizations. She is associate editor of the journal International Relations and author of Embedded Cosmopolitanism: Duties to Strangers and Enemies in a World of Dislocated Communities (forthcoming). Mervyn Frost is Professor at the London Centre of International Relations within the War Studies Department at King’s College, University of London. Prior to this he was Professor of International Relations at the University of Kent at Canterbury and Professor of Politics and Head of Department at the University of Natal in Durban, South Africa. He was President of the South African Political Science Association from 1992–94. He is author of Towards a Normative Theory of International Relations (1986), Ethics in International Relations (1996), and Constituting Human Rights: Global Civil Society and the Society of Democratic States (2002). Frances Harbour is Associate Professor of Government and International Affairs at George Mason University, Fairfax, Virginia. She is the author of Thinking About International Ethics: Moral Theory and Cases from American Foreign Policy (1998) and has published articles in such journals as Armed Forces and Society, Ethics & International Affairs, and the Journal of Religious Ethics. She is past-president of the International Ethics Section of the International Studies Association and currently serves as civilian representative and treasurer on the governing board of the Joint Services Conference on Professional Ethics. Daniela Kroslak has recently received a PhD from the University of Wales, Aberystwyth. She spent six months at the Norwegian Institute of International Affairs (NUPI) in 2002 where she was employed as a researcher on the programme Training for Peace. Her publications include (with Tim Dunne) ‘Genocide: Knowing what it is that we want to remember, or forget, or forgive’, International Journal of Human Rights (2000), and (with Alex Bellamy) ‘The Dawning of a Solidarist Era? The NATO Intervention in Kosovo’, Journal for the Study of Peace and Conflict (2001). She now works for UNFPA in Rwanda. Anthony F. Lang, Jr teaches Political Science at Albright College in Reading, PA. He has recently published a book on the ethics of humanitarian intervention: Agency and Ethics: The Politics of Military Intervention (2002). His current research focuses on global protest movements, the political philosophy of Hannah Arendt, and the intersection of ethics and law in the use of military force.

Notes on Contributors ix

Cornelia Navari is Senior Lecturer in the Department of Political Science and International Studies, University of Birmingham. She is author of Internationalism and the State in the 20th Century (2000); and editor of British Politics in the Spirit of the Age: Political Concepts in Action (1996), Chatham House and British Foreign Policy during the Interwar Period (1994) and The Condition of States (1991). Nicholas Rengger is Professor of Political Theory and International Relations at St Andrews University in Scotland. His most recent book is International Relations in Political Thought: Texts from the Ancient Greeks to the First World War, co-edited with Chris Brown and Terry Nardin (2002). He is currently writing a book on two moral sensibilities and their implications for politics and international relations. David Runciman is University Lecturer in Political Theory in the Faculty of Social and Political Sciences at the University of Cambridge. He is author of Pluralism and the Personality of the State (1997), which is about the history and the theory of the state’s relationship as an association to other kinds of associations. He has also published articles on this and similar themes, relating to the overall question of the state’s identity as an agent in its own right.

Acknowledgements

There are many people to whom I am very grateful – some for their contributions to this volume, and others for the role that they have played in the larger project of which it forms a part. In 1999, a British Academy Postdoctoral Fellowship, held at the University of Cambridge, provided me with the opportunity to begin work on a research project provisionally titled, ‘Who are moral agents in international relations? Assigning responsibilities to collectivities’. The purpose of this project was (and is) to explore whether institutions, in the sense of formal organizations, can be considered moral agents, and, if so, to critically examine the implications of this for the theory and practice of international relations. Initial discussions with Onora O’Neill at Newnham College, Cambridge on how to formulate this project were invaluable. Subsequent discussions have been equally illuminating and I am extremely grateful to her for her time, advice and encouragement. I also owe a great debt of gratitude to Chris Brown, at the London School of Economics, who, with characteristic insight, commented on the initial fellowship proposal and has been a vital source of support, challenging feedback, and engaging ideas at every stage of the research that has followed. Ian Clark, Mervyn Frost, James Mayall and Daniel Warner each took the time to discuss the project with me at its inception and provided the ideal combination of encouragement and constructive criticism. With the support of a British International Studies Association (BISA) Special Workshop Award and an International Studies Association (ISA) Workshop Grant, I was able to add a collaborative aspect to this project. This took the form of the BISA/ISA Joint Special Workshop, ‘Can Institutions Have Morals?’, held at the University of Cambridge, 17–19 November, 2000. This volume grew out of the papers and animated discussions of that workshop. A 2002–2004 British Academy International Network Grant, with Joel Rosenthal at the Carnegie Council on Ethics and International Affairs as Overseas Partner, has allowed me to convene further meetings to follow on from the first. The British Academy Ethics, Institutions and International Relations Network met for a second workshop, ‘Assigning Duties to Institutions: Debating Hard Cases’, in Montreal, Canada, 10–12 May 2002. Additional support for this workshop was provided by x

Acknowledgements xi

the ISA and McGill University. A third workshop, ‘Blame, Punishment and the Rehabilitation of “Delinquent” Institutions’, will be held at the Carnegie Council on Ethics and International Affairs, New York, in May 2004. This extension of the collaborative project that began with the Cambridge workshop has provided both the opportunity for collective reflection and the additional resources necessary to bring our initial thoughts on the subject of institutions and moral agency together in an edited volume. In addition to those whose papers appear in this book, I would like to thank the other participants in the Cambridge workshop for the important role that each played in two days of debate, deliberation and discussion: Geoffrey Hawthorn, Charles Jones, Andy Kuper, Rhona Leibel, Catherine Lu, James Mayall, Onora O’Neill, Jenna Sindle, Daniel Warner, Deborah Field Washburn, and Helen Yanacopolus. I would also like to thank Amartya Sen for his hospitality at Trinity College during the workshop. His interest in this project is greatly appreciated. As well as those contributors to this book who took the time to provide written comments on other chapters, I am grateful to Andrew Linklater, Barbara Metzger, Onora O’Neill and Nicholas Wheeler for providing constructive written comments on individual chapters. The editorial team at the journal Ethics & International Affairs, particularly Joel Rosenthal, Christian Barry, Tony Lang and Deborah Washburn, gave their support to the workshop and provided detailed comments on a number of chapters. Their participation strengthened the project and enlivened discussions. Moreover, the Editor has generously allowed three workshop papers that were initially published in the Journal to be reprinted here. Chapters 1, 3 and 8 first appeared in Ethics & International Affairs, Vol. 15(2). At Palgrave, Jim Whitman has been unwavering in his enthusiasm for this project and Allison Howson has been consistently helpful. I am grateful to them both. The Centre of International Studies and Clare Hall at the University of Cambridge and the Department of International Politics at the University of Wales, Aberystwyth provided collegial and stimulating settings within which to pursue this project. My thanks go to colleagues at each institution for many memorable discussions of the issues addressed in this volume. Daniela Kroslak assisted me with the final editorial stages of the book by checking references, reformatting footnotes and compiling the index. I cannot imagine having a more efficient or over-qualified editorial assistant. Mike Filek, as always, has helped me to balance very

xii Acknowledgements

different types of responsibilities. Along with Nicholas and Joshua, he has also made the accompanying challenges worthwhile. I owe the greatest debt to the contributors to this volume – for their hard work, willingness to engage with new ideas, and unfailing patience and good humour. I look forward to future collaborations and on-going discussions. TONI ERSKINE

Introduction: Making Sense of ‘Responsibility’ in International Relations – Key Questions and Concepts Toni Erskine*

Discussions of international relations are rife with assertions of responsibility: to ‘fight terrorism’, to ‘promote peace’, ‘democracy’ or ‘human dignity’, to ‘feed the starving’, to ‘rescue’ and to ‘protect’ those threatened with massacre, to ‘save the environment’, to do something to prevent, or remedy, injustices and crises. Of course, myriad questions accompany any discussion of responsibilities – never more so than when we speak of them on a global scale. We might ask to whom we have particular duties, how far our obligations extend, and what the source of such ethical imperatives could be.1 These are difficult, important, and often passionately debated points of inquiry.2 Yet, raising them assumes that we already know who the bearers of specific responsibilities are. Sometimes we do. When addressing problems in international politics, however, this is often not the case. We might each, as individuals, be understood to have responsibilities to certain others and for certain outcomes. Nevertheless, each of us, however talented, and however influential the roles we inhabit, would be hard pressed to confront the most serious problems in international politics as individuals. Indeed, as individuals, we cannot meet many of those responsibilities that we variously voice with caution and conviction. Moral burdens, it seems, must often be borne elsewhere. This is, perhaps, commonsense. The move of turning to institutions (in the sense of formal organizations) as bearers of these responsibilities might also, to some, be intuitive. Yet, institutions in international politics are many and diverse and it does not necessarily make sense – either in theory or practice – to direct claims to duty (or concomitant charges of blame) towards these formal organizations. At least, it does not make sense to do so without a very clear understanding of why they might be deemed able to respond to moral reasoning, in what circumstance they might act (or be prevented 1

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from doing so), whether they can even be understood to act in a way that is distinct from their individual members, and how one might distinguish between the capabilities of different institutions in any given context. Moreover, despite the apparent resolve to speak in terms of responsibility in international politics, the centrality that this notion is often given in constructing and defending policies tends to be removed from the requisite task of specifying appropriate agents. What is lacking is not simply a means of distributing responsibilities between relevant actors in international relations – although determining principles of distribution is an important concern.3 Rather, attention must be paid to identifying those entities that are capable of responding to the many and varied ethical invocations and calls to action in the first place. If the normative claims listed above are to be taken seriously, it is necessary to carefully consider which bodies can act on them – otherwise, the critical task of discussing moral responsibilities in international politics is reduced to mere rhetoric.4 Addressing the following questions is, therefore, critical: who, or what, can respond to proposed ethical imperatives in international relations? More specifically, and perhaps contentiously, can moral responsibilities be borne by institutions in just those cases where necessary action is beyond the scope of individual human beings? And, finally, if assumptions and assignments of responsibility can be made with regard to institutions, how does this affect the way that we think about, and conduct, international relations? These questions are central to the aims of this volume. Two problems, however, arise in any attempt to broach them. First, the language of responsibility in international politics – spoken by academics and policy-makers alike – is impoverished when it comes to the expression of one very important concept: moral agency. This is the concept that would allow us to consider who can act in response to ethical reasoning, before we engage in questions of who should act (and who is to blame for not having done so). Indeed, not enough attention is paid to identifying agents in international relations, let alone agents that possess the sophisticated deliberative capacities and executive functions that would allow them to respond to what we understand to be moral imperatives. Second, even if one attempts to introduce consideration of moral agency to international relations, one is faced with a disjuncture between the reasonable assumption that institutions are often the most powerful and prominent actors in the global sphere, and the general reticence to accept that the class of moral agent might extend from the individual human being to encompass certain types of groups or collectivities. Such reticence is embodied in the ‘individualist’ position that assigning moral

Making Sense of ‘Responsibility’ 3

responsibility to a group is either sloppy shorthand for referring to the decisions and actions of individual human beings, or mere nonsense.5

Why does the moral agency of institutions matter to international relations? There are very good reasons for confronting these problems and asking whether institutions might be considered moral agents in international relations despite apparent obstacles. One of these reasons is that such an inquiry forces one to reassess assumptions that are made in the relatively new discipline of International Relations (IR)6 – a discipline that has a fascinating proclivity for accepting certain groups as purposive actors and an equally intriguing tendency to remove the same groups from consideration as entities that are capable of being guided by moral reasoning.7 For example, those on either side of the so-called ‘agent–structure debate’ that has permeated the study of international relations are uninhibited in their equation of ‘state’ and ‘agent’. Moreover, for those who focus on ‘agents’, employing rational choice and Game Theory models, states are unproblematically independent, unitary and rational actors – a depiction based on an analogy with individual human beings drawn from microeconomics.8 Indeed, in contrast to the stark conceptual distinction between ‘natural’ flesh-and-blood individuals and groups espoused by individualists, much work within IR is premised on (often uncritically accepted) assumptions of the ontological status and idealized capacities of those institutions known as states. These bold assumptions, however, have failed to precipitate analyses of the state’s moral responsibilities.9 It would seem only a small step for scholars of IR to take this well entrenched analogy between the individual human being and the state further and consider the potential moral agency of collective actors in international relations – states and otherwise. Nevertheless, such a move becomes even more subversive of staunch convictions within the discipline when one looks to certain formal organizations beyond the state. The same statist ontology that paradoxically co-exists with such unwillingness to consider the state to be a moral agent, militates against the possibility that intergovernmental organizations, such as the North Atlantic Treaty Organization (NATO) or the United Nations (UN), might be either agents or moral agents.10 From the perspective of ‘neorealists’ and ‘neoliberal institutionalists’ alike – occupiers of supposed opposite sides of an academic debate, prominent as least in North American IR – intergovernmental organizations are not agents in their own right;

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they lack ontological independence.11 There are prima facie inconsistencies in this selective attribution of characteristics to formal organizations in international relations: first, regarding the assumption that some entities are, without question, considered to be agents, but are not deemed to be moral agents; second, in light of the accompanying assumption that other entities, with arguably comparable capacities, qualify as neither. Either rectifying or justifying these apparent inconsistencies should teach us something about how we understand agency, moral agency, and responsibility in IR.12 Engaging in these academic debates is not, however, the only, or even predominant, motivation for examining the possibility that institutions might be moral agents. Such an exercise also allows one to disentangle complexities in policy-making in a world where calls to action often precede the identification of relevant actors capable of responding. In such a world, proposed duties provoke controversy, conflicting claims, and often complacency. Failing to address questions of who can respond to calls for action, and under what circumstances, allows entities that are not agents – the ‘international community’ is an example invoked later in the volume – or agents incapable of responding in certain contexts – the UN is a possible, and controversial, member of this latter category – to be burdened with duties that they cannot discharge, while leaving more appropriate actors overlooked (or ‘off the hook’). Equally, divorcing questions of moral agency from assertions of responsibility means that blame can be carelessly, and often creatively, directed and apportioned. Statements of responsibility are then used to justify censure and sanction, punishment and retribution, and, all too easily, the resort to force, even when ‘enemies’ and perpetrators, objects of condemnation and objects of war, are illdefined or misrepresented. Who can be said to bear a duty to respond to famine, natural disaster, gross violations of human rights, or environmental crisis in a particular part of the world? Who can be blamed for actions – or failures to act – when populations are massacred, nuclear power plants malfunction, and civilians become targets of terrorist attacks? Individual leaders? States? Transnational and subnational bodies? Intergovernmental organizations? The international community as a whole? When one builds policies on assertions of either duty or blame, clarity requires, at the very minimum, recognition of the relevant actors involved.

Terminology and distinctions Of course, the task of examining such questions also demands clarity. There are a few key terms that appear throughout this collection of

Making Sense of ‘Responsibility’ 5

essays, such as ‘institution’, ‘moral agency’, and ‘responsibility’. Each concept is somewhat slippery in that it is subject to quite different applications. In order to ensure that the various positions – and points of departure – taken in the subsequent chapters are as clear as possible, it is necessary to say something about how these terms are understood and how these broadly shared interpretations distinguish this particular project from other possible endeavours. My intention here is not to provide definitions per se. Rather, I will offer a brief explanation of how the terms are employed and indicate some of the issues and points of contention involved in invoking them in the context of the specific questions being posed.

Institution The purpose of this project is to determine whether institutions can coherently be understood to have responsibilities in world politics. This in itself is a complex problem and to avoid adding ambiguity to complexity it is necessary to clarify what is meant by an institution. Such clarification is particularly important as ‘institution’ is an extremely malleable term within IR literature, the study of politics and the social sciences more generally, and, indeed, in everyday usage.13 In IR, ‘institution’ can be used to connote an established and persistent set of norms and practices of the sort to which Hedley Bull applies the term in his classic work, The Anarchical Society. Bull refers to, inter alia, the balance of power, international law, and war as ‘institutions of international society’.14 Marriage is an ‘institution’ in a similar sense in common parlance.15 The term institution has also been employed within IR with reference to the issue-driven amalgams of organizations and rules otherwise known as ‘regimes’, examples of which include ‘the international monetary regime’.16 Finally, the term institution can be used to refer to formal organizations such as the UN, the World Bank, and Microsoft. In this volume, it is this final use of the term that is being invoked.17 It is useful to indicate the main respect in which this particular usage differs from the other two: unlike Bull’s ‘institutions of international society’, or the ‘social institutions’ invoked by some scholars examining international regimes, institutions in the sense of formal organizations can conceivably be considered agents. In focusing on institutions thus understood, the contributors to this volume are not only specifically addressing groups or collectivities in international relations, but are looking at groups with particular features. Significantly, Robert Keohane describes institutions in the sense of formal organizations as possessing

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‘the capacity for purposive action’.18 This is, in itself, far from being an uncontroversial claim.19 It is, however, a claim that will be given support in many of the subsequent chapters in the context of suggestions that institutions can be moral agents.

Moral agency In very general terms, moral agency entails capacities for deliberating over possible courses of action and their consequences and acting on the basis of this deliberation. An important implication of the above account is that not all agents are moral agents. Adults who are severely mentally ill and young children, to take two examples, are agents, but they are not generally considered to be moral agents. This does not mean that they lack moral standing. Rather, we do not hold the same expectations of them when we are either prescribing or evaluating actions. Because moral agents possess the sophisticated deliberative capacities necessary to allow them to respond to specific types of reasoning, and to understand their actions and the probable outcomes of their actions, we expect them to conform to (at least some of) the demands that we deem to be ethical imperatives.20 In other words, these capacities render them vulnerable to the ascription of duties and the apportioning of moral praise and blame in the context of specific actions in a way that non-moral agents are not similarly vulnerable. There are different objections that must be faced if one is to argue that not only individual human beings, but also institutions, as described above, can be considered moral agents.21 First, it might be pointed out that formal organizations do not meet some of the more stringent criteria invoked to designate moral agency. The force of this claim, however, depends on the way in which these criteria are conceived and it is important to note that philosophers rely on quite different standards in defining the individual moral agent. Arguments are, indeed, made for the importance of, inter alia, the following features: the possession of consciousness, an ‘inner life’, rationality, sentience, intentionality, and self-awareness; the capacity to transcend mere feelings and passions and act in accordance with moral law; the ability to act on the basis of altruism; and, the capacity for remorse and empathy. In light of these particular standards, barriers to ascribing the status of moral agent beyond the individual human being loom large. Formal organizations are quite clearly not, for example, ‘conscious’. Nevertheless, in response to this it might be argued that consciousness is not a necessary feature of moral agency, but that a deliberative capacity, discernible in the

Making Sense of ‘Responsibility’ 7

ability of some institutions to access and process information, is sufficient.22 Simply put, compelling accounts of moral agency can be articulated that do not immediately disqualify institutions. On the other hand, there might be acceptance of the possibility that institutions can be moral agents, but disagreement as to the roles, capacities, and most appropriate descriptions of particular institutions. For example, a deliberative capacity manifest in an institution’s formal decision-making structure might be deemed enough to counter the charge that institutions lack the ability to form intentions; but, whether or not a certain institution, such as the UN, possesses a decision-making function that is unified and sophisticated enough to represent such a capacity can still be disputed.23 In other words, attempts to respond to the question, ‘Can Institutions Have Responsibilities?’, must be concerned with two problems: whether moral agency is something that can be possessed by groups at all; and, if, in theory, institutions can be moral agents, which specific entities in the international arena have the features that would allow them to qualify as such.

Responsibility A discussion of responsibility follows naturally from an account of moral agency. Plainly stated, to be responsible for some act, event or set of circumstances is to be answerable for it. (Looking at the etymology of the term, this is neatly born out – ‘responsibility’ comes from the Latin respondeo, meaning ‘I answer’.)24 Yet, the scope for application that this definition allows is problematic. Indeed, responsibility is a notoriously awkward concept in terms of pinning down any one of its many possible meanings in the context of a particular usage.25 It is also a concept that is central to any analysis of moral agency in international relations. There are two points of clarification that should be made with regard to how the concept is employed in this volume.26 The first is merely to indicate that what is generally being referred to is moral responsibility. Such responsibility is understood to arise from our moral duties, however conceived and grounded, as opposed to being ascribed by a particular legal system, for example, as is the case with legal responsibility.27 Moral responsibility, moreover, is a concept that is either prescriptive or evaluative of the actions of those agents who are able to foresee, understand, and intend the outcomes of what they do or do not do. In other words, to employ the term discussed above, moral responsibility is a concept that can only be invoked with regard to the actions of moral agents.28 This aspect of moral responsibility distinguishes it in an

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important way from causal responsibility.29 Indeed, the attribution of causal responsibility, which, in very simple terms, is concerned with how a particular outcome is generated, does not even require that one is referring to an agent, let alone a moral agent.30 The second point of clarification concerns the types of claims that we are making when we invoke the notion of moral responsibility. By saying that an agent is morally responsible for something, one is doing one of two things. One might be making an ex ante judgement regarding tasks that the agent in question ought to perform given certain conditions. Alternatively, one might be offering an ex post facto assessment of a particular event or set of circumstances for which the agent’s acts of commission or omission are such that the agent is deemed deserving of praise or blame. These can be referred to as statements of prospective and retrospective responsibility, respectively.31 These two understandings of moral responsibility are intimately linked. Claims to prospective responsibility imply that the agent to whom a duty is being assigned is a legitimate object of moral evaluation at some future point with regard to the degree to which this duty is fulfilled or abrogated. Conversely, assertions of retrospective responsibility depend on interpretations of an agent’s duties in particular contexts. Both senses of responsibility – prospective and retrospective – will be addressed in the subsequent chapters. Arguably, how the term is used in the context of each study reveals individual responses to the question posed earlier in this introduction: ‘Why does the moral agency of institutions matter to international relations?’. Discussions of retrospective responsibility might seem to suggest that the project of studying moral agency and institutions is motivated by the desire to point fingers and apportion blame. By the same logic, addressing responsibility prospectively might be seen to indicate that this pursuit is precipitated by the wish to somehow assign and distribute moral burdens. Both accounts are evident in the contributions to this volume. The impetus behind this project as a whole is, however, slightly more complex than either of these descriptions would allow. As already mentioned, this project is, in part, a response to the observation that assigning duties and ‘pointing fingers’ is already a prevalent part of the practice of international politics. It is also prompted by the belief that the ways in which these assessments are made are highly problematic. Identifying moral agents in international politics, and asking what kind of entity can coherently be described as such, is prior to any useful discussion of how duties might be assigned or praise and blame apportioned. Yet, it is this requisite move that has been sorely neglected.

Making Sense of ‘Responsibility’ 9

The structure of the volume In attempting an initial step towards redressing this neglect, the subsequent chapters are divided into four parts. Part I raises the problem of identifying moral agents in international relations with reference to states, governments, and ‘international society’. The chapters by Erskine, Runciman, and Brown that comprise this section not only contemplate whether these entities can be attributed with moral agency, but also explore the nature of agency itself in international politics, proposing variations on the concept in the form of agency as ‘present in degrees’, agency as ‘a necessary fiction’, and ‘informal agency’, respectively. Part II critically examines the study of institutions as moral agents at two levels. Harbour questions the viability of the notion of moral agency when we are referring to groups that are necessarily subject to the internal compromises that accompany political processes. Frost and Navari, in respective chapters, caution that allowing an exclusive focus on the concept of moral agency risks precluding other ethical considerations with regard to institutions. Frost suggests that any study of ethics in international relations must allow room for analyses of the social practices within which moral agents – whether individual human beings or institutions – are constituted as such. Navari claims that the focus of the volume risks privileging the responsibilities of institutions as moral agents over the proposed rights of those institutions that might be more aptly described as ‘moral patients’. Parts III and IV rely on detailed case studies to explore what arguing that institutions can, in theory, be moral agents means for confronting practical problems in international politics. These ‘hard cases’ are organized according to the distinction, outlined above, between employing the notion of institutions as moral agents to make ex ante judgements regarding assignments of duties and invoking this idea to make ex post facto assessments of accountability in the wake of specific acts of commission and omission. Part III deals with issues of prospective responsibility in the context of Cornish and Harbour’s analysis of distributing duties between NATO and those individual soldiers who acted on its behalf during the Kosovo Campaign and DeWinter’s examination of how transnational corporations in the global apparel industry are being constructed as bearers of responsibilities in response to the anti-sweatshop movement. Part IV deals with questions of retrospective responsibility through Kroslak’s study of the degree to which the French government can be blamed for the genocide in Rwanda and Lang’s account of the UN’s failure to defend Srebrenica during the conflict in the former Yugoslavia.

10 Toni Erskine

The concluding contributions in Part V, by Rengger and Barry, address the significance of the idea that institutions can be moral agents for broader debates in both politics and international relations, namely those concerning notions of global governance, institutional design, and global justice.

Caveats and future pursuits Although the volume explores a range of international actors and cases, it is inevitable that not all points of inquiry relating to the potential moral agency of institutions will be explored. Indeed, it is important to emphasize that the institutions that are addressed in this volume by no means exhaust the range of those that might be discussed, debated or championed as moral agents in international politics. Non-governmental organizations (NGOs), international financial institutions (IFIs), and religious bodies are just some significant institutions that are not specifically examined. Furthermore, while the contributors to this volume draw on a number of different ethical perspectives in their respective analyses, there are, of course, approaches that are not represented here. From the fact that certain cases and perspectives are not addressed in this volume should not be inferred that they are seen to be less important than those that do appear. The chapters presented here arose as individual responses to the question, ‘Do Institutions Have Responsibilities?’. That the collective product bears omissions should, I hope, be seen as an invitation to others to join the discussion that these first responses represent. One intriguing set of issues that is alluded to in this volume is the rehabilitation or punishment of institutions. These issues seem to follow naturally from the suggestion that institutions can be moral agents. If existing institutions are incapable of discharging specific duties, one might consider imbuing institutions with the relevant capacities an important endeavour. If certain institutions can be blamed for their acts of commission or omission, it makes sense to think seriously about how one might prevent future transgressions. Such proposals raise particularly interesting, and difficult, questions. Do some agents have duties to create, reform, rehabilitate, or otherwise enable an institution to respond to ethical imperatives that would otherwise be left unheeded?32 Should we ‘punish’ institutions that already have the capability to discharge duties but are, nevertheless, delinquent? How can an institution be punished in a way that does not effectively punish its constitutive members as individuals? While the rehabilitation and punishment of institutions

Making Sense of ‘Responsibility’ 11

are subjects that it makes sense to treat independently of the initial question of whether institutions can have responsibilities, they deserve future attention and will be addressed as part of this on-going project.33 Finally, sceptics of an approach to ethical reasoning that would recognize the moral agency of institutions might fear that such recognition somehow undermines individual moral agency.34 This is a concern that is broached and discussed in subsequent chapters.35 However, stating the aim of the current project in this respect might prove helpful. What is being proposed in this volume is a perspective that would acknowledge the moral agency of institutions without precluding the moral agency of the individual human being. As Keith Graham maintains in his work on the morality of ‘collectives’: ‘[m]y intention … is not to replace individuals but to complement them, with other entities that are significant in their own right for our understanding of the social world we live in’.36 For the study of international relations, this complement should also enhance our understanding of the moral world we live in. The perception that we do, indeed, inhabit a moral world in which institutions have duties and can be blamed is commonplace: it confronts us when we listen to ascriptions of responsibility made by politicians, policy-makers, and people on the street, when we watch CNN, and when we read the newspaper. Yet, when agents are not specified or, perhaps more significantly, when collective entities are singled out but no attempt is made to identify whether they are moral agents, such statements of responsibility risk being incoherent – however well-intentioned, forcefully articulated, or broadly supported. This volume – and the project within which it is embedded – aims to address and critically engage with this often implicitly invoked, but under-theorized, notion of institutions as bearers of moral burdens in international politics.

Notes *

I am very grateful to Christian Barry, Chris Brown, Daniela Kroslak, Andrew Linklater, and Nick Wheeler for extremely valuable written comments on this introduction.

1 I am using ‘responsibilities’, ‘duties’, and ‘obligations’ interchangeably to indicate actions or forbearances that one is deemed bound to perform or observe. Although this is consistent with much contemporary usage, each concept can also be taken to have a specific, distinct connotation. For discussions of the distinction between the concepts of ‘duty’ and ‘responsibility’, see J. Feinberg, ‘Duties, Rights and Claims’, in J. Feinberg, Rights, Justice, and the Bounds of Liberty (Princeton: Princeton University Press, 1980), pp. 130–42, and R. Goodin, Utilitarianism as a Public Philosophy (Cambridge: Cambridge

12 Toni Erskine

2

3 4

5

University Press, 1995), pp. 81–7. Robert L. Frazier outlines one way in which ‘duties’ have been distinguished from ‘obligations’ in his essay on ‘duty’ in Routledge Encyclopedia of Philosophy (London/New York: Routledge, 1998), pp. 178–83 (p. 178) while observing that the terms are now generally treated coextensively. Questions regarding both the source and scope of our responsibilities to others are addressed within what has been referred to as the ‘communitariancosmopolitan debate’ within normative international relations theory. See, inter alia, C. Brown, International Relations Theory: New Normative Approaches (New York: Columbia University Press, 1994), M. Cochran, Normative Theory and International Relations: A Pragmatic Approach (Cambridge: Cambridge University Press, 1999), and T. Erskine, ‘ “Citizen of Nowhere” or “The Point Where Circles Intersect”? Embedded and Impartialist Cosmopolitanisms’, Review of International Studies, XXVIII (2002) 457–78. Important arguments for duties that are global in scope include the following: O. O’Neill, Faces of Hunger (London: Allen & Unwin, 1986) and Bounds of Justice (Cambridge: Cambridge University Press, 2000), C. Beitz, Political Theory and International Relations [1979], 2nd edn (Princeton: Princeton University Press, 1999), B. Barry, The Liberal Theory of Justice (Oxford: Clarendon Press, 1973), H. Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (Princeton: Princeton University Press, 1980), P. Singer, ‘Famine, Affluence and Morality’, Philosophy and Public Affairs, I (1972) 229–44, T. Pogge, ‘Priorities of Justice’, Metaphilosophy, XXXII (2001) 6–24, and C. Jones, Global Justice: Defending Cosmopolitanism (Oxford: Oxford University Press, 1999). David Miller addresses this problem in ‘Distributing Responsibilities’, The Journal of Political Philosophy, IX (2001) 453–71, as does Christian Barry in Chapter 12. It is worth noting that discussions of responsibilities in IR are not unique in failing to identify appropriate agents. Indeed, a lack of clarity in this regard is no more apparent than in the context of increasingly prominent discourses on rights – specifically human rights – in which duties are unavoidably implicitly invoked. Complexities here arise particularly in identifying the relevant agents against whom rights claims might be made. Indeed, approaching questions of justice from the perspective of rights rather than responsibilities is vulnerable to criticism precisely because it necessarily, rather than in moments of carelessness, avoids statements of who – or what – is to act. O’Neill, for example, observes in Bounds of Justice (p. 101) that, ‘the rhetoric of rights … is still a rhetoric of recipience rather than of action. It still takes the perspective of the claimant rather than of the contributor, of the consumer rather than of the producer, of the passive rather than of the active citizen’. See also O. O’Neill, Towards Justice and Virtue: A Constructive Account of Practical Reasoning (Cambridge: Cambridge University Press, 1996), pp. 128–36. ‘Individualism’ is a term that embraces a number of different ideas. As a point of opposition to the idea of collective moral agency that will be explored in this volume, I am referring to both ‘methodological individualism’, according to which all social facts must be explained exhaustively in terms of the actions, beliefs, and desires of individual human beings, and ‘ontological individualism’, according to which only human beings are ‘real’ and, therefore, possible agents – collectivities lack a separate reality.

Making Sense of ‘Responsibility’ 13 6 7

8

9

10

11

I will follow the convention of referring to this area of academic study as IR, and to its subject matter as international relations. One might, however, maintain (as Andrew Linklater, Joel Rosenthal, Nick Wheeler, and Mike Williams have each done in very useful conversations on this point) that certain classical realist positions do claim that states are guided by moral reasoning, albeit an understanding of moral reasoning that is compatible with, even if not exclusively defined by, an ethics of self-interest, prudence, and raison d’état. ‘Realists’ such as Hans Morgenthau and George Kennan might be understood to fall within this category. Two points seem particularly interesting here. First, this interpretation challenges IR’s common, and rather narrow, portrayal of ‘realism’ as a perspective that views the international as a necessarily amoral realm. Second, even if a conception of the state as a moral agent is implicitly allowed by some classical realist positions, it is not explicitly addressed. This is, then, another area for which an analysis of the concept of moral agency (that might shed light on some of the prima facie contradictions in works of the above theorists) is conspicuous in its absence. As I discuss in Chapter 1, the portrayal of individual human beings that serves this analogue – that we are ideal, rational choosers – itself makes a number of questionable assumptions. For a valuable overview of assumptions regarding the agency of the state within rational choice and Game Theory models, see M. Hollis and S. Smith, Explaining and Understanding International Relations (Oxford: Clarendon Press, 1990), chapter 6. Finally, it is revealing to note that this analogy is so deeply ingrained that it is, apparently, possible for those within IR to appropriate the term ‘individualism’ to describe the ontology of the neorealist position with the relevant agents being posited as states. See, for example, Alexander Wendt’s use of the term in ‘The Agent–Structure Problem in International Relations Theory’, International Organization, XLI (1987) 335–70, and Hollis and Smith, p. 89. This very interpretation of the term implicitly rejects individualist assumptions as they are conventionally understood. This combination of an uncritical acceptance of the state as an agent and the rejection or evasion of its possible role as a moral agent is a feature of, inter alia, neo-realist, and (many) realist positions. Alexander Wendt’s constructivist approach to the study of IR provides an exception to this tendency on one count. He defends, rather than simply takes for granted, the state’s status as an agent. However, while giving a perfunctory nod to the ‘practicoethical’ motivation for his work, he declares that he will not deal with ethical issues in his analysis. See Social Theory of International Politics (Cambridge: Cambridge University Press, 1999), pp. 215–24 and pp. 21–2, and, for a brief discussion on this point, my introduction to Chapter 1. I make a preliminary case for the agency and moral agency of the UN in ‘ “Blood on the UN’s Hands”? Assigning Duties and Apportioning Blame to an Intergovernmental Organization’, Global Society, XVIII (January 2004). See also Chapters 7 and 10 for discussions of the moral agency of NATO and the UN, respectively. M. N. Barnett and M. Finnemore make this observation in ‘The Politics, Power and Pathologies of International Organizations’, International Organization, LIII (1999) 699–732.

14 Toni Erskine 12 Discussions of agency and moral agency in IR allow one to test the assumptions of debates and movements beyond those suggested here. For example, in the introduction to Chapter 3, Chris Brown maintains that questioning whether ‘international society’ has the capacity for agency, and, by extension, moral agency, impinges on assumptions made by ‘structural realists’, proponents of the ‘English School’, and ‘constructivists’. 13 Raymond Williams outlines the etymology of the term, both with respect to its use as a concept meaning practices and custom and in relation to its employment with reference to organized bodies. See his Keywords: A Vocabulary of Culture and Society (London: Fontana Press, 1983), p. 168. For a survey of different ways in which the term is used within IR, see R. Keohane, ‘International Institutions: Two Approaches’, International Studies Quarterly, XXXII (1988) 379–96 (pp. 382–6). I will draw on some of Keohane’s distinctions in this section. 14 H. Bull, The Anarchical Society: A Study of Order in World Politics (London: Macmillan, 1977), p. 74. 15 Keohane, p. 383, describes both Bull’s notion of ‘institution’ and the example of the ‘institution of marriage’ as falling broadly within the definition of institution as ‘a general pattern or categorization of activity’ (emphasis in the original). 16 The most explicit equation of these terms can be found in the work of Oran R. Young. He maintains that ‘[r]egimes are social institutions governing the actions of those interested in specific activities (or accepted sets of activities)’, in ‘Regime dynamics: the rise and fall of international regimes’, in S. D. Krasner (ed.), International Regimes (Ithaca and London: Cornell University Press, 1983), pp. 93–113 (p. 93). Young offers a similar definition in his ‘International Regimes: Problems of Concept Formation’, World Politics, XXXII (1980) 331–56 (p. 332). While Stephen Krasner avoids treating ‘regime’ and ‘institution’ as interchangeable, in ‘Structural Causes and Regime Consequences: Regimes as Intervening Variables’, in International Regimes, p. 2, he compares his own definition of ‘regime’ – ‘sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given area of international relations’ – with Bull’s understanding of ‘institutions’. 17 One should note, however, that in Chapter 3 Brown addresses the challenging question of whether a formal or informal collective body of states can be said to possess moral agency. With the UN as an example of the former, Brown invokes, among others, the Concert of Europe as an example of the latter. In Chapter 11, Nicholas Rengger discusses both ‘informal institutions’ (in the sense of established practices) and ‘formal institutions’ (in the sense of organizations). 18 Keohane, p. 384. By focusing on the capacity for action as a defining feature of the notion of institution that will be relied upon in this volume, I am not precluding bodies so defined from also being structures within which other agents act. Describing certain institutions as social frameworks that define, constrain, and shape the actions of their constituents is thereby not incompatible with the definition of institution as a formal organization and purposive actor. This point is usefully illustrated by Mervyn Frost in Chapter 5 and I am grateful to him for emphasizing it.

Making Sense of ‘Responsibility’ 15 19 Such a statement faces criticism on two fronts. First, critics maintain that institutions, as groups, cannot in themselves perform acts; only individual human beings are capable of independent action. Second, critics argue that institutions lack the unity that would allow them to formulate and carry out what could coherently be called ‘intentions’. 20 Two qualifications embedded in this statement are important. First, the capacity to conform to all moral requirements is not a defining feature of moral agency. Agents might lack the capacity to adhere to some moral requirements, while still being moral agents. I discuss this in Chapter 1, ‘Exercising Moral Agency’, p. 34. See also V. Haksar, ‘Moral Agents’, in Routledge Encyclopedia of Philosophy, Volume 6 (New York: Routledge, 1998), pp. 499–504 (p. 499). Second, I state that the moral agent has the capacity to respond and conform to those demands that are deemed to be ethical imperatives. The nature of these duties is not something that I want to suggest is uncontested, ahistorical, static or, indeed, easily defined. I do want to suggest that what we understand to constitute a moral agent can be discerned independently of addressing these issues. However, on this point, Mervyn Frost, Rebecca DeWinter, and Anthony Lang, Jr might wish to go further. In their respective chapters, each points out the historically contingent nature of the concept of moral agency and the importance of recognizing the context within which our current understanding of it is situated. 21 Similar objections apply to suggestions that entities possessing ‘artificial intelligence’, such as computers, might be moral agents. 22 See O. O’Neill, ‘Who Can Endeavour Peace?’, in D. Copp (ed.), Nuclear Weapons, Deterrence, and Disarmament (Calgary: University of Calgary Press, 1986), Canadian Journal of Philosophy, Supplementary Volume XII (1986), pp. 41–73 (p. 63) and Erskine, Chapter 1. 23 On the specific issue of whether or not the UN’s decision-making structure allows it to qualify as a moral agent, see Erskine, ‘ “Blood on the UN’s Hands”?’ and (for an opposing verdict) Brown, Chapter 3. 24 J. R. Lucas highlights this etymology in Responsibility (Oxford: Clarendon Press, 1993), p. 5. 25 H. L. A. Hart colourfully illustrates this point in Punishment and Responsibility: Essays in the Philosophy of Law (Oxford: Clarendon Press, 1968), p. 21. 26 A further point of clarification, regarding how moral responsibility as borne by an institution diverges in significant ways from common understandings of ‘collective responsibility’, is discussed in Chapter 1 under the heading ‘Institutional Moral Agency’, pp. 21–2. 27 One can, of course, identify moral and legal responsibilities for performing the same action (or observing the same forbearance). The important point here is that many of those obligations that are part of international law – the prohibition against engaging in wars of aggression and the prescription to prevent or suppress acts of genocide – we, presumably, want to be able to argue, and do in fact argue, in moral as well as legal terms. See, for example, Daniela Kroslak’s discussion of the legal and moral responsibilities of states to prevent and suppress genocide in Chapter 9. 28 Different legal systems indicate their own criteria for responsible agency, which might overlap with those for moral agency – on the notion of intent, for example.

16 Toni Erskine 29 The importance of this feature of moral responsibility, and how it distinguishes moral from causal responsibility, might be illustrated by an example. A two year-old child playing with a gun and making it go off, thereby resulting in serious injury to her brother, is causally responsible for this harm – even though one can safely assume a lack of any sophisticated understanding of the consequences of her action and the absence of a coherent conception of wrongdoing. The young child in this example is not morally responsible for the outcome to which she contributed. The parent of the young child who failed to supervise her, or the careless person who left the gun where she could reach it, however, are conceivably morally responsible for the second child’s injury. This illustrates an important point: an agent can be causally responsible for an outcome without being morally responsible for it – and vice versa. 30 A drought, for example, might be deemed to be causally responsible for the failure of crops and an ensuing famine. There could not even be a question worth raising as to whether such an ‘act of God’ involves questions of moral responsibility unless we were to take this appellation to be literal. The reader should note, however, in the context of this example and that above, that the notion of causal responsibility is much more complex than what can be adequately conveyed here. A valuable discussion of causal responsibility is presented in H. L. A. Hart and T. Honoré, Causation and the Law, 2nd edn (Oxford: Clarendon Press, 1985). 31 We might also say that someone is responsible tout court. Joel Feinberg makes this further distinction in Doing and Deserving: Essays in the Theory of Responsibility (Princeton: Princeton University Press, 1970), p. 26. This carries another connotation again and refers to an attribute or virtue of an individual (‘she is a responsible and trustworthy person’) rather than being prescriptive or evaluative in terms of specific actions. 32 See the final section of Erskine, ‘ “Blood on the UN’s Hands”?’ for a discussion of such duties. 33 These issues constitute the topic for the third ‘Ethics, Institutions and International Relations’ workshop, which will be held in May 2004 at the Carnegie Council on Ethics and International Affairs in New York and will be entitled, ‘Blame, Punishment and the Rehabilitation of “Delinquent” Institutions’. 34 A. F. Lang, Jr expresses this concern in ‘Responsibility in the International System: Reading US Foreign Policy in the Middle East’, European Journal of International Relations, V (1999) 67–107 (p. 69). Lang’s position in the present volume is quite different, however. In Chapter 10, he advocates rather than criticizes an account of institutions as moral agents. 35 See, inter alia, Chapter 1, p. 26, Chapter 4, pp. 78–9, and Chapter 7. 36 K. Graham, ‘Morality, Individuals and Collectives’, in J. D. G. Evans (ed.), Moral Philosophy and Contemporary Problems (Cambridge: Cambridge University Press, 1987), pp. 1–18 (p. 12).

Part I Identifying Moral Agents: States, Governments, and ‘International Society’

1 Assigning Responsibilities to Institutional Moral Agents: The Case of States and ‘Quasi-States’ Toni Erskine*

Who are moral agents in international relations? The prominence of issues such as environmental degradation, humanitarian intervention, and global inequality in the distribution of resources and wealth challenges the theorist of international relations not only to recognize moral obligations that are transnational in scope, but also to ask the difficult question of who, or what, is to bear these responsibilities. Providing an answer to this question requires an understanding of the complex and diverse bodies that act in the international arena. It also demands an understanding of the fundamental assumptions that would permit one to describe any of these bodies as vulnerable to moral blame, praise, and the ascription of duties – in other words, as moral agents. This area of inquiry is of critical concern. Nevertheless, broaching the idea of moral agency in international relations threatens to open a Pandora’s box of conundrums and contradictions. Theorizing about politics at the international level is a practice that has produced an abundance of paradoxes, not the least of which is the ‘realist’ assumption that states are actors (often the actors) in international relations, and yet are not capable of specifically moral action. The human individual is used as a metaphor for the state, but only in an oddly, rather inhuman, amoral incarnation: national interests are seen to replace moral considerations.1 Alexander Wendt makes a similar assumption in his recent ‘constructivist’ account of the international system.2 While Wendt moves some distance beyond the realist commitment to the egoism of the state, he does not venture so far as to challenge the realist view that the state cannot respond to ethical reasoning – even though, for Wendt, ‘states are people, too’.3 In both cases, the agency of the state is fundamental while the very idea of its potential moral agency is either rejected or evaded. Of course, any move 19

20 Toni Erskine

to attribute moral agency beyond the individual to institutions such as states in a way that is not merely metaphorical must be carefully considered. Human individuals are generally thought to be paradigmatic moral agents; the potential moral agency of collectivities is an important but relatively neglected area of inquiry. (One might refer to the former as ‘natural’ agents and to the latter as ‘artificial’ agents.)4 To say that an individual human being is a moral agent is to say that this individual has the capacity to both understand and respond to ethical reasoning. It is also to say that he or she can incur moral responsibilities. By claiming that institutions (in the sense of formal organizations) can be moral agents in international relations, one is extending the same assumptions to collectivities. Is this rather daring theoretical leap a viable one? What would it mean for theorizing about contemporary international relations? I will begin to address these concerns by defining and critically evaluating the idea of collective, or institutional, moral agency. I will then propose the state as a potential species of institutional moral agent in international relations – a suggestion that will not, however, be made without qualification. By invoking the division between those states that are in possession of ‘positive sovereignty’ and those that Robert H. Jackson has called ‘quasi-states’, I will illustrate why the specific circumstances of different institutions must be taken into account if one is, indeed, to take seriously the idea of the institutional moral agent.5 Specifically, I will make two suggestions: first, that the disparate conditions within which nominally indistinguishable institutions find themselves can result in unequal capacities to exercise moral agency; and, second, that this important theoretical distinction must affect our practical policy-making in international relations. This analysis represents the first stage of a (rather dauntingly) large project. Its purpose is to begin to construct a model of institutional moral agency that can be used to understand more clearly – and discuss more coherently – claims of responsibility in international relations. It is important to emphasize that the latter portion of this discussion will be concerned with employing this model not to make ex post facto assessments of actions (or failures to act) as a way of determining culpability or attributing blame, but rather to make ex ante claims of who can act, and under what conditions, as a preliminary exercise essential to distributing duties in international relations. In proposing this model, I will, however, endeavour to lay some of the conceptual groundwork for future evaluations of where blame lies among international actors when these duties are neglected.

States and ‘Quasi-States’ 21

Building a model of institutional moral agency One might begin this pursuit by asking whether ascriptions of moral responsibility even make sense when their subjects are collectivities. ‘Individualists’, staunch opponents of the idea of collective moral agency, would reply in the negative. They maintain that you and I, and not states or corporations, are the basic units of ethical reasoning.6 This contention is bolstered by the argument that individual human beings possess characteristics that cannot be claimed by collectivities. In proposing a model of institutional moral agency, I will suggest that this disanalogy is often over-stated. Some institutions share with individual human beings certain relevant capacities that mean that assigning them responsibilities is a coherent endeavour. The fundamental defining criteria of the individual moral agent can be said in very general terms to be the capacity for both moral deliberation and moral action. In other words, one must first be able to understand and reflect upon moral requirements. One must also have the capacity to then act in such a way as to conform to these requirements. This second criterion – the capacity to act in response to moral guidelines – presupposes a further condition if this capacity is to be put to practice. To exercise moral agency, one must not only have the capacity to act, but also the freedom to do so. It therefore makes sense that the exercise of moral agency requires that one enjoy some degree of independence from other agents and forces.7 This is an important stipulation. In emphasizing it, I am distinguishing between the capacities that one must possess in order to qualify as a moral agent and the conditions that would allow one to exercise this agency.

Institutional moral agency The question of when, if ever, a collectivity is a moral agent is not one that has commanded attention among theorists of international relations. Nevertheless, a very different conception of moral responsibility with regard to groups is no stranger to discussions of justice and reparation, guilt and apology, and retribution and reprisal in international politics. According to this conception, a degree of solidarity within a group allows those who are not party to a specific action to be morally praised or blamed for the action of an agent or agents within the same group.8 This notion of retrospective responsibility is referred to by the frequently invoked and much maligned phrase ‘collective responsibility’.

22 Toni Erskine

Responsibility in this sense can be described as ‘vicarious’ or ‘indirect’9 and has been addressed in the specific sense of exploring the degree to which individual citizens must bear and retain guilt for the past deeds of their governments. It has garnered particular attention with regard to the issue of whether the German people are ‘collectively responsible’ for the Holocaust.10 By this account, membership within the group in question, and therefore the distribution of responsibility among its members, may even be understood to extend transgenerationally – and, in another variation on this position, to extend universally where the relevant group is conceived of as humanity as a whole.11 Aversion to this notion is not difficult to explain: it runs counter to the understanding that one cannot be blamed for the wrongdoing of another, or be held ‘guilty by association’. This conception of ‘collective responsibility’ diverges significantly from what I wish to discuss here. An implication of the model of institutional moral agency that I will propose cannot be that all members of a group are responsible for the actions of discrete agents within that group. Responsibility is simply not distributive in this way. Instead, the group itself is the agent. There is nothing ‘vicarious’ about either the ascription of duties or the assignment of blame in this case.12 In light of the account of the flesh-and-blood individual moral agent provided above, constructing such a model of institutional moral agency requires (at the very least) two important steps: determining which types of collectivity qualify as moral agents and investigating the conditions under which they can then exercise this agency. The first step will involve establishing the criteria that a collectivity must meet if we are to view it as capable of acting and knowing in a way that is analogous – but not identical – to that of (most) individual human beings. Collectivities come in a multitude of forms. They include tribes and teams, faculties and families, biker gangs and battalions, corporations and queues at the supermarket, academic bodies, and, indeed, states. Yet, even the most enthusiastic proponent of the idea of collective moral agency is bound to exercise great restraint in deciding to which groups she would consider granting such standing. It might prove useful momentarily to adopt a process of elimination and begin by asking what sorts of collectivity we would not assume to fall within such boundaries. Crowds, for example, do not appear to be groups to which we would attribute moral agency. Intuitively, we might feel that there is something in their randomness and transience, and perhaps in their erratic behaviour, that would disqualify them. Despite their spatial and

States and ‘Quasi-States’ 23

temporal contiguity, crowds, like checkout queues and mobs, cannot be considered actors in a sense that is not reducible to the individuals that compose them. These intuitions are important, but they need to be given some substance. Since a detailed examination of institutional moral agency is conspicuous in its absence from the discipline of International Relations (IR), it is necessary to look outside the field to find useful examples of how one might extend moral agency from the individual to the collectivity. One area in which such an extension has been considered in some detail is the literature on business ethics and corporate moral personhood. In Collective and Corporate Responsibility, Peter French challenges what he identifies as an ‘anthropocentric bias’ in our understanding of moral agency and aims to establish the corporation as a moral person. In this pursuit, he distinguishes between two types of collectivity. The first he refers to as an ‘aggregate collectivity’ – a group that he quickly dismisses as ‘merely a collection of people’. French explains that a change in the membership of an aggregate collectivity is necessarily accompanied by a change in its identity. In other words, the group is nothing more than the sum of its constitutive parts. ‘Aggregates’, he judges, ‘simply fail the tests for membership within the moral community’.13 The type of collectivity that French argues does qualify as a moral agent he labels a ‘conglomerate collectivity’. ‘A conglomerate collectivity’, he writes, ‘is not exhausted by the conjunction of the identities of the persons in the organization’. Simply put, it is more than the sum of identities of its constituents. A related feature of such a collectivity is that it does not generally indicate a determinate group of individuals. French offers the following examples of collectivities whose identities are independent of their particular memberships: ‘the Democratic Party, the Congress, the Rolling Green Country Club, the faculty of Yale University, the Gulf Oil Corporation, the Honeywell Corporation, the U.S. Army, the Red Cross’.14 French further characterizes conglomerate collectivities as having ‘internal organizations and/or decision procedures’.15 The idea that his ‘artificial moral person’ must have a central decision-making function is important for two reasons. First, it demands that the collectivity be able to deliberate. In other words, it introduces a requisite capacity to access and process information. Second, it entails a degree of decision-making unity that would allow the collectivity in question to arrive at a predetermined goal, rather than simply displaying a spontaneous convergence of individual interests. In short, this criterion stipulates that the collectivity be capable of purposive action – exactly the feature that is

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lacking in the crowd that, at most, is capable of patterns of coordinated action without any effective integration of information between the individuals involved. In addition to his claim that conglomerate collectivities must possess internal decision-making procedures, French invokes the intriguing criterion that conglomerate collectivities must have an identity over time. He writes of ‘project-making things that can “conceive of themselves as having a past accessible to experience-memory and a future accessible to intention” ’.16 This criterion for moral personhood eliminates groups that are spurious or transient: candidates for collective moral agency must have continuity.17 I want to suggest a related criterion that is implicit in the way French requires agents to conceive of themselves as having an identity over time: to be candidates for moral agency, collectivities must be self-asserting. By this I do not mean that they must be self-aware or conscious. Rather, this criterion serves to stipulate that they cannot be merely externally defined, thereby disqualifying groups that do not see themselves as units. This is neither an exhaustive list of the features of French’s ‘conglomerate collectivity’, nor an endorsement of his overall argument. Nevertheless, the criteria that he espouses can be usefully adopted – and adapted – by the theorist of international relations to determine which types of collectivities qualify as moral agents. A collectivity is a candidate for moral agency if it has the following: an identity that is more than the sum of the identities of its constitutive parts and, therefore, does not rely on a determinate membership; a decisionmaking structure; an identity over time; and a conception of itself as a unit. I will refer to collectivities that possess these characteristics as ‘institutional moral agents’. Following these criteria, it is possible to make initial conjectures as to which groups in international relations would potentially qualify as such. It is important to emphasize that this exercise is quite different from any attempt to determine whether these groups behave morally or immorally. Instead, by asking the necessarily prior question of whether they can be moral agents, I am determining whether they are thereby vulnerable to assignments of duty and ascriptions of blame.

Institutional moral agents in international relations Consideration of the often-intertwined entities of state and nation allows a useful distinction between which collectivities may be judged to be moral agents and which may not. I will argue below that, given the

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criteria that I have put forward, the state qualifies as an institutional moral agent. On the other hand, while nations might claim identities that are both independent of their constitutive memberships and that exist over time, they lack decision-making structures and, therefore, are not candidates for moral agency. Non-territorially defined institutions, or ‘networking institutions’, also provide instructive cases.18 Transnational corporations and transnational NGOs, such as Oxfam, Médecins Sans Frontières, and Amnesty International, all qualify as institutional moral agents according to the above criteria. However, an emerging subcategory of networking institution – the Internet – lacks a central decision-making structure and, therefore, does not qualify. (This does not, however, mean that the Internet is beyond moral reproach. It simply means that ascriptions of moral responsibility must be reduced to the individuals who constitute the network.) Paramilitary organizations such as the Irish Republican Army and the Palestine Liberation Organization, and transnational religious organizations such as the Roman Catholic Church, all meet the criteria for institutional moral agency. Reference to the ‘international community’ as a moral agent is deeply ambiguous. We often hear it being burdened with weighty responsibilities – especially through the media (another deeply ambiguous ‘moral agent’). Yet, it is difficult to see how this assignment can be anything more than rhetorical.19 Not only does the international community lack an identity that is independent of the identities of its constitutive members, but it does not have a decision-making capacity. Nevertheless, a body with an established decision and action procedure such as the United Nations (which is often portrayed as representing the international community) would be a candidate.20 This means that in addition to providing a graphic anthropomorphic image, the bold newspaper headline, ‘The Rwandan Blood on the UN’s Hands’, makes a plausible assumption regarding the UN’s capacity to bear duties and to be held accountable for its actions (and failures to act) in a way that similar claims regarding the international community or international society do not.21 Identifying institutional moral agents in international relations does more than merely serve an abstract theoretical function – it is a profoundly important practical exercise. If we are to maintain that international relations is not an amoral realm, and that ethical guidelines can govern actions, it is essential to correctly identify the agents that are capable of responding to these guidelines. Policy prescriptions that place duties with collectivities that do not meet the criteria for institutional

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moral agency – such as the ‘international community’ – are not only fruitless endeavours, but they also risk being effective evasions of significant problems veiled as ‘calls to action’. Conversely, when one invokes duties that do involve institutional moral agents – such as jus ad bellum demands upon NATO – prescriptions for action might be misdirected if they are reduced to the group’s component membership. This final point is not meant to imply that the moral responsibilities of individuals can be conveniently transferred to institutions and thereby sidestepped. Rather, it arises because some duties cannot be distributed among individuals at all. The individual soldier can be expected to uphold the duty not to shoot at a civilian intentionally; he cannot reasonably be burdened with the duty not to engage in a war of aggression. Fundamental to this assertion is that many institutions enjoy greater capacities for deliberation and action than are enjoyed by individuals. Such capacities include comprehensive access to information, sophisticated means for its collection and processing, and elaborate structures for the execution of decisions.22 Indeed, institutions might promote great social goods or be guilty of grave transgressions that would simply be beyond the scope of individual actors. These capacities allow institutions to bear certain duties that could not be borne by any individual.

States and quasi-states In addressing the moral responsibilities of institutions in international relations, one is faced with a multitude of actors to be considered. Here I will deal with one general category of actor: the state. This focus allows me to confront directly the paradox addressed above, that states have often been presented as the agents in international relations even as they have evaded any attribution of moral agency. It also forces me to consider some of the implications of arguing that institutions can, indeed, bear moral responsibilities. I will look at two broad classes of state: what Robert Jackson has described as states that exercise ‘positive sovereignty’, and what he has usefully labeled ‘quasi-states’, or states that are only sovereign in name. Distinguishing between these different classes of state will serve an important purpose. It will uncover the crucial point that one cannot assume that all institutions deemed to be moral agents are in a position to exercise this agency. This, in turn, must have critical repercussions for how we assign moral responsibilities in international relations.

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The state Referring back to the criteria outlined above, the state does appear to qualify as an institutional moral agent. First, it can be argued to have an identity that is distinct from its constitutive components: descriptions of the actions of the state are not reducible to descriptions of the actions of its individual members. (By this I do not mean that all actions involving the state must be described in a way that is not reducible to other actors, but that some actions can only be described at the collective level of the state.) Moreover, the membership of the state – in the form of its citizens – is not determinate. Indeed, citizens are born, die, immigrate, and emigrate without affecting the identity of the state. The understanding of the state as an institutional moral agent entails that the state is also irreducible to the current government. Quentin Skinner supports the fulfilment of this criterion when he describes the modern state as ‘an apparatus of power whose existence remains independent of those who may happen to have control of it at any given time’.23 In fulfilment of the second criterion, the state can deliberate and arrive at a unified course of action. Indeed, the state has a capacity for reasoning and decision-making that is akin to that of the human individual. This is not to accept the conceit that states are perfectly rational, unitary actors.24 Rather, it is to acknowledge that the state is capable of purposive action, despite the fact that politics necessarily involves compromise and often imperfect reasoning, in much the same way that the individual human being is capable of purposive action regardless of incomplete knowledge and internal tensions between conflicting values, desires, and interests.25 Moreover, the state has an identity over time. It has ‘a past accessible to experience-memory and a future accessible to intention’. It has continuity. Finally, the state has a conception of itself as a unit. This feature is distinct from the juridical identity that it is granted by international society and is perhaps most evident in the constitutional framework by which it defines itself. In short, it is possible to say that states are institutional moral agents. I have proposed that states have the capacity to deliberate and act. Nevertheless, this capacity is not sufficient in itself to allow moral agency to be exercised. The freedom to act and some degree of independence from other actors are conditions that must also be met. Invoking these conditions in her 1986 essay, ‘Who Can Endeavour Peace?’, Onora O’Neill implies that states can respond to ethical reasoning. ‘Nation-states’, she argues, ‘in fact, have more extended powers of action and greater independence from other agents and forces than do

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other institutions. That is why we speak of sovereign states’.26 She also makes an important case against idealizing either the human or the institutional agent by expecting unlimited powers of action or complete independence from other agents.27 Nevertheless, difficulties arise for many of these so-called sovereign states even if one refrains from employing an idealized standard for establishing institutional moral agency. While supporting O’Neill’s insistence that states are potentially responsive to ethical reasoning, I will focus on the point that not all states exist under the requisite conditions that she emphasizes.28 In particular, I will address a class of state that does not possess the type of sovereignty that guarantees either limited powers of action or some degree of independence from other actors: the quasi-state.

The quasi-state In his influential 1990 work, Quasi-States: Sovereignty, International Relations and the Third World, Robert H. Jackson maintains that the delegitimation of colonialism following World War II resulted in the birth of a plethora of states that challenge the classical model of sovereign statehood. The postcolonial Third World state, Jackson observes, is ‘a new type of sovereign state which is independent in law but insubstantial in reality and materially dependent on other states for its welfare’.29 With particular reference to sub-Saharan African states, he labels this precarious, and ultimately deeply problematic, addition to international society the ‘quasi-state’. Jackson’s thesis rests on a distinction between positive and negative sovereignty: while the former has conventionally defined the modern state, the emergence of states that are defined almost exclusively by the latter represents a novel set of circumstances in international relations. Positive sovereignty – the freedom to act (and deter) – embodies traditional norms of reciprocity and has been manifest in both Western imperialism and colonialism. Negative sovereignty – freedom from outside interference – defies traditional norms by combining the reciprocal right of non-intervention with non-reciprocal material aid. Devoid of ‘empirical statehood’, the quasi-state relies on negative sovereignty to provide the framework within which its sovereign status is sustained.30 I do not mean to treat the quasi-state as a monolithic entity in international relations; nor do I take for granted the complexity of the histories and current circumstances faced by those individual states placed within this category. Nevertheless, for the purpose of this analysis I will be content with a very broad distinction. I am interested in Jackson’s

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detailed and insightful depiction of the drastically disparate conditions – both normative and empirical – in which states currently exist. I will suggest that the idea of the quasi-state, and the recognition of these conditions, throws a spanner in the works of any easy attribution of moral agency to the state. As Jackson comments, ‘A world containing both states and quasi-states is different from one containing only states’.31 If the model of institutional moral agency being proposed here is eventually to provide a guide to how responsibilities might be coherently distributed in international relations, it must acknowledge this difference. Qualifying as an institutional moral agent: the internal structure of the quasi-state I emphasized above that collectivities come in many shapes and forms, some of which qualify as moral agents and some of which do not. I then argued that states are moral agents. The defining features of quasi-states, however, raise some concerns as to whether they can unproblematically be said to fall within the same category. I will make a qualified claim that they can. Nevertheless, addressing the points at which the quasistate seems to resist classification as an institutional moral agent is a useful exercise. If the institutional moral agent is defined as possessing an identity that is both independent of the identities of its constitutive parts and exists over time, the tendency of quasi-states not only to be burdened with unstable and quickly changing governments, but also to have their fortunes rest on the merits (or demerits) of individual leaders is potentially problematic. ‘Quasi-states’, Jackson observes, ‘… lack established institutions capable of constraining and outlasting the individuals who occupy their offices’.32 This description provides a significant departure from Skinner’s testimony to the modern state’s ability to maintain an identity independent of those who happen to have control of it at any one time. Does the identity of the quasi-state shift dramatically from one government to the next, making it difficult to refer meaningfully to ‘a distinct, organized unit through time’?33 An institutional moral agent must also have an internal decision-making structure that would allow it to deliberate on a concerted course of action. Yet, the weakness of such structures is a defining feature of the quasi-state. Whether the quasi-state can still be deemed capable of purposive action is a critical question.34 I have invoked the crowd as an example of a collectivity that is not an agent, though its members might temporarily act in unison. In an analysis of ‘states and statelessness’ in

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Africa, Jennifer Widner likens the situation within some contemporary sub-Saharan African states to ‘the behavior of hostile and expressive crowds’. While the individuals within these ‘crowds’ might act together in ways that they would not act if they were apart, the social disintegration evident in some countries means that there is an absence of purposive, concerted action at the collective level of the state.35 Finally, I proposed that the institutional moral agent must have an identity that is self-asserted and not merely externally defined. A fundamental element of Jackson’s thesis is that the quasi-state has neither a genesis nor a history that is comparable to those of states that became legitimate and self-conscious entities internally before achieving external recognition. For many quasi-states, their geographical and constitutional frameworks have been ‘posited’ as a direct result of colonialism and trusteeship, rather than arising from pre-existing identities.36 Indeed, as Jackson observes, precolonial African societies generally lacked fixed territorial bases.37 I do not want to suggest that an absence of defined borders would preclude candidacy for institutional moral agency. According to my argument so far, it certainly would not: there is no criterion listed above specifying that institutional moral agents must be territorially defined. To the contrary, many of the institutions that I tentatively placed in this category, such as NGOs and transnational corporations, also lack fixed territorial bases. Rather, the problem is that there is such a disjunction between precolonial societies and the state boundaries invented by colonial powers that one might question whether these quasi-states have self-asserted identities at all, let alone ones that have continuity over time. These points suggest that states might vary enough in kind to prevent some from having as strong a claim to the status of moral agent as others. Yet, my inclination is to exercise a great deal of caution before prematurely dismissing quasi-states as unable to meet the criteria set out above. Compelling arguments can still be made for classifying the majority of quasi-states as moral agents. Indeed, it is important to note that even a relatively short history as a state, marked by a common struggle for both juridical and material independence, might be enough to forge an identity that is not only self-asserted, but distinct from its constitutive parts. Furthermore, states that fit the extreme model of social disintegration that prompts Widner to compare their behaviour to that of a ‘crowd’ do not simply lack positive sovereignty. Instead, they are what she describes as states that have ‘collapsed’ and what Jackson labels ‘failed states’, or states that have ‘self-destructed by armed anarchy within’.38 This distinction between weak, quasi-states and states

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that have collapsed is a critical one and is emphasized by a number of theorists exploring statehood in sub-Saharan Africa.39 Quasi-states might have more limited capacities for deliberation and action than states that are in possession of positive sovereignty; for many of these states, however, such capacities are not absent entirely. The suggestion that these capacities are limited, but apparent, leads one to ask whether the attribution of moral agency to institutions is, in fact, an all-or-nothing exercise. I would suggest that it is not. Each of the criteria proposed in this essay for determining which collectivities qualify as moral agents can be met in degrees. Of course, it is true that for some collectivities these criteria cannot be met at all. Collapsed states do not warrant the label ‘institutional moral agent’. In these cases, the agency that once was attached to the state ceased to exist when the state imploded, and any assignment of duties must now be directed towards the myriad individuals and groups that can be said to be acting. Quasistates that remain structurally intact (albeit weak), and that still meet the criteria outlined above (even with some difficulty), cannot be similarly dismissed. Because they possess some degree of institutional moral agency, the question of whether external conditions allow them to exercise this agency becomes a paramount concern. Moreover, focusing on these external conditions brings us back at certain points to the prior issue of their status as moral agents. Indeed, such a focus reveals that the quasi-state’s status as a moral agent is implied, and arguably undermined, by the global economic and political system. Exercising moral agency: considering the external conditions of quasi-states Many states, variously (and rather contentiously) described as ‘developed’ or belonging to the ‘First World’, possess what Jackson has called positive sovereignty. These states find themselves in conditions that are conducive to the exercise of moral agency. (Whether they then behave morally or not is, of course, an entirely separate matter.) The phrase ‘positive sovereignty’, after all, finds its etymology in the notion of positive liberty. Positive liberty presupposes ‘conditions that are enabling’. Jackson maintains that ‘positive sovereignty likewise presupposes capabilities which enable governments to be their own masters’.40 Quasistates – upheld almost exclusively by what Jackson has described as a regime of negative sovereignty – lack such enabling conditions and the accompanying opportunity to be their own masters. These states are overwhelmingly dependent on material aid, at the mercy of the dictates of foreign creditors, and more vulnerable to the whims of international

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markets than their more ‘developed’ counterparts. In other words, even if we can consider them to be moral agents, the conditions under which they exist render them often ill equipped to exercise moral agency with either confidence or consistency. I cited the conditions necessary for an institution to exercise moral agency as being the freedom to act and some degree of independence from other actors. Quasi-states fall woefully short of enjoying either. Jackson claims, ‘Quasi-states by definition are deficient and defective as apparatuses of power’.41 This should not be taken to mean that they simply lack the capacity to act – although this capacity might be limited – but rather that they are deprived of the conditions necessary to realize this capacity. Indeed, compared to their more developed counterparts, they ‘have far fewer means and resources with which to implement and enforce their decisions’.42 Although quasi-states lack this positive liberty, or the freedom to act, they are purportedly granted independence in the sense of negative liberty – they are legally sovereign states protected from intervention. However, when it comes to the nature of the ‘donor–recipient’ relationship in which quasi-states find themselves, one might question the degree to which they, in fact, enjoy such protection. In the period immediately following the formal independence of many former colonies, aid donors might have felt that they were bound by principle not to interfere in the national projects of recipient states; nevertheless, donors have become increasingly bold in the degree to which they aim to influence the internal affairs of quasi-states in the name of economic reform, political liberties, and human rights.43 The acute fiscal crises within which quasi-states must reach decisions usually make the accommodation of donor pressures an exceedingly compelling ‘option’. The extent to which aid conditionality has succeeded in promoting economic stability, democratization, or respect for civil liberties in recipient states is the subject of heated debate.44 For the purposes of this analysis, a crucial point is that regardless of whether these policies have been positive, negative, or merely neutral in meeting their objectives, when donor institutions provide aid conditionally – demanding, for example, that recipient states attain certain standards in respecting human rights and adhere to a ‘good governance agenda’ – they are underscoring the quasi-state’s lack of independence from other agents and forces. It is not the aim of this chapter to evaluate the efficacy of aid policies. Nevertheless, in light of the preceding observation, one might note a logical contradiction inherent in the practice of conditional aid. Donors assume that quasi-states are moral agents in implementing provisos: such

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demands presuppose that recipient states have the capacity to respond to moral requirements and bear responsibilities. Yet, if one accepts that some degree of independence from other agents is requisite to the exercise of moral agency, donors might also be undermining the ability of recipients to meet those requirements and responsibilities. Caveats outlining the negative effects of conditional aid to states in sub-Saharan Africa are based on a variety of rationales. Nicolas van de Walle maintains that extensive ‘donor micromanagement’ of policymaking discourages the development of domestic backing for reform.45 Benno Ndulu and Stephen O’Connell argue that only broad public debate over national policy can encourage the political pluralism needed to foster economic growth. They caution that while external donors can play a role in encouraging economic and political development in sub-Saharan Africa, they will ‘misuse’ their influence ‘if they deny African populations and their political leaders the ability to set their own national agenda’.46 The present analysis lends support to these warnings to avoid excessive donor micromanagement and allow states to maintain some degree of autonomy over their own affairs. However, it does so with primary reference to an alternative set of considerations: the extent to which such policies undermine both a state’s independence from other actors and its concomitant ability to exercise moral agency. Awareness of the category of quasi-state uncovers the importance of asking whether different institutions – or, more precisely, institutions similarly classified but differently situated – might have disparate capacities for exercising moral agency and, therefore, for bearing duties. This is a vital consideration. Assigning a duty to an institution that is incapable of discharging it is not only an exercise in theoretical incoherence and policy-making futility, but it also results in certain prospective responsibilities being unaccounted for. It is important to note that it is not only quasi-states that experience conditions that limit their capacity for independent action. Just as some quasi-states assert independence even under adverse circumstances (Tanzania, Zambia, and Nigeria have all at some point eschewed conditions placed upon them – and foregone financial support – to then embark upon independent exercises of ‘structural readjustment’), so too one might argue that the positive sovereignty of ‘First World’ states is subject to circumscription by the increased interdependence of markets. This might also adversely affect, in extreme circumstances, the ability of these states to exercise moral agency. Nevertheless, it is crucial to recognize not only that complete independence from other agents is not requisite to the exercise of moral

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agency, but also that the opportunity to be self-directive and to act on decisions, like the capacities for action and deliberation themselves, can exist in degrees. I have emphasized the importance of acknowledging the external conditions that result in different institutions experiencing disparate abilities to apply (even limited) capacities for deliberation and action to practical circumstances. In the case of the quasi-state, the obstacles that it encounters when faced with specific prescriptions for action cannot simply be reduced to its limited or ‘underdeveloped’ capacities for responding to ethical reasoning. This would neglect the often-debilitating conditions within which it is expected to act. Moreover, as van de Walle, Ndulu, and O’Connell indicate, the internal structural factors that limit the capacity of quasi-states to deliberate and act are not independent of these external circumstances. Yet, how these insights begin to provide some indication of an appropriate distribution of duties between states and quasi-states is far from straightforward. In fact, there is a highly problematic assumption that could be seen to follow from the conclusion that states that are deprived of positive sovereignty face correlative limits to their ability to exercise moral agency: that quasistates necessarily evade all assignments of duty. Some support for rejecting this assumption can be found by exploring what is deemed fair and acceptable in assigning duties to the ‘natural’ moral agent. Specifically, one might invoke the understanding of the adult human individual as a moral agent with limits – limits (both intrinsic to the person and externally imposed) that prevent the agent from conforming to some of the demands of morality. Implicit in this description is the assertion that there are other demands to which the agent is able to conform. The significant aspect of this position is that the inability to exercise moral agency in one area does not mean that an individual is not a moral agent, and thus free of all moral duties.47 The same can be said of institutional moral actors. ‘Empirical states’ may, indeed, shoulder duties with which quasi-states cannot be burdened. Nonetheless, there are specific areas within which quasi-states can exercise moral agency. As Carolyn Warner observes in response to the inherent difficulty in categorizing such political entities, ‘states vary considerably in the capacities they have in various arenas to be weak or strong …’.48 While a state, like an individual, cannot be said to bear a duty that circumstances render it incapable of discharging, such invulnerability to the assignment of responsibilities when conditions are enabling cannot be similarly condoned. Quasi-states can, indeed, bear duties.

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Conclusion In response to the question posed in the title of this volume, I have argued that institutions, carefully defined, can be moral agents. As moral agents, they can incur responsibilities. However, the above analysis does not claim to solve the plethora of problems that one faces when broaching the issue of duties in international relations. Indeed, there remain many other points that need to be addressed, but are beyond the scope of this preliminary attempt to construct a model of institutional moral agency. One such point is the source of the moral demands to which the institutional moral agent is expected to conform. One might argue that discerning the requirements of morality, if one is speaking of collective actors in a diverse and often-divided world, can be just as problematic as then determining who is able to respond to these requirements and under what conditions. But this is a separate – albeit important – problem that affects both individual and institutional moral agents alike. Four modest claims regarding the practical implications of this analysis can be made: two in light of the criteria offered for identifying institutional moral agents and two in response to the proposed conditions under which moral agency can be exercised. First, if only individuals, and never institutions, are seen to be moral agents, the possibility of assigning responsibility for some actions is lost. The United States can respond to acute environmental crises by upholding the conditions of the Kyoto convention – whether or not it chooses to do so – while the individual citizen cannot. The same citizen might have a duty to live in a way that is environmentally responsible, but she has neither the scope nor the power to coordinate and enforce systemic changes in how goods are produced, consumed, and disposed of. As O’Neill maintains, ‘If ethical reasoning is accessible only to individuals, its meagre help with global problems should not surprise us’.49 Second, and somewhat conversely, assigning duties to a collectivity that is not an agent is an incoherent exercise. In such cases, responsibilities can only be assigned to the constitutive parts of the collectivity. On this point, assigning responsibilities to the ‘international community’ to intervene on behalf of ethnic Albanians in Kosovo or the Tutsi in Rwanda might have entailed condemnations of the violence in these regions, and may have even been intended as calls to action, but such proclamations fail to identify agents and are therefore evasions of meaningful action.

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Third, it is necessary not only to examine which types of collectivity achieve this minimum standard necessary to qualify as moral agents, but also to address the conditions under which they might be able to exercise moral agency. This insight is particularly relevant to states that enjoy formal juridical equality under radically disparate conditions. Duties cannot be effectively assigned to institutional moral agents that are not able to perform prescribed actions. Nevertheless, recognition that some institutions must function under conditions that are not conducive to the exercise of moral agency must be accompanied by an awareness that this does not preclude their ability to bear duties in all arenas. While quasi-states cannot be expected to bear the same global responsibilities as states that enjoy positive sovereignty, they can, nevertheless, be expected to bear duties that they are capable of upholding. Finally, while some states, namely those in enabling conditions, can respond to certain prescriptions for actions that are beyond the scope of quasi-states, I want to suggest that this does not entail that these enabled states must become global ‘agents-of-last-resort’.50 Such a notion implies that some crises can only be addressed by leaving the discharge of specific duties – such as the proposed duty to rescue those threatened with massacre – to default agents simply because they alone enjoy the capacities and conditions necessary to act. This does not take into account the existence of other institutional moral agents – agents that have the capacity to act in response to ethical reasoning, even if their circumstances hinder their ability to exercise these capacities. Moreover, invoking the agent-of-last-resort in the context of specific global crises does not necessarily engender the response of the most appropriate, relevant, or potentially effective agents in those circumstances. Instead, states that exist in enabling conditions have the option of contemplating an alternative set of responsibilities: first, fostering conditions under which quasi-states can exercise moral agency, and thereby bear duties in arenas within which they were previously prevented from acting; and second, building or rehabilitating alternative institutions that are capable of responding to those ubiquitous calls that ‘something must be done’.51 There are a number of critical reasons for analysing what constitutes a coherent distribution of global responsibilities. Oddly, and often tragically, our attention is focused on issues of imputation following international crises. Yet, addressing how responsibilities can be distributed is necessarily a prior step to understanding what it means to blame institutions for actions or failures to act. It is imperative to have some sense of who, or what, can bear duties before we deal with questions

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of imputation, blame, and even punishment when these duties are abrogated. It is when an analysis of prospective responsibility is neglected that charges of retrospective responsibility are misdirected – as when the ‘international community’ is mysteriously imbued with agency and blamed for failing to respond to genocide, environmental crisis, or famine. Moreover (and more optimistically), dealing with prospective responsibility holds the hope of acting to avert crises, thereby avoiding the need to speak retrospectively of responsibility in terms of guilt and culpability because ‘nothing was done’, our ‘agents-of-last-resort’ were ineffective, or any action was simply ‘too little, too late’. Addressing issues of prospective responsibility through a model of institutional moral agency that helps one to understand who, or what, can act in response to moral imperatives, and under what conditions such duties can be discharged, promises to contribute to more coherent policy-making and theorizing about ethics and international affairs. Specifically, in a radically unequal world, this model provides an initial step in determining appropriate and acceptable allocations of moral burdens to the various institutional moral agents that we call states.

Notes *

Earlier versions of this chapter were presented at the International Studies Association (ISA) convention in Los Angeles, CA, 18 March 2000, and at the BISA/ISA Joint Special Workshop, ‘Can Institutions Have Morals?’, held at the University of Cambridge, 17–19 November 2000. Another version was published in Ethics & International Affairs, XV 2 (2001) 67–85. I am very grateful to Onora O’Neill for thought-provoking discussions that helped me to formulate this argument and to Chris Brown for his helpful responses to an earlier draft. I am also indebted to all of the other Cambridge workshop participants and to the anonymous reviewers and the editors of Ethics & International Affairs for their challenging and constructive comments. This research was made possible by a British Academy Postdoctoral Fellowship.

1 It should be noted that the many positions that tend to be included under the label ‘realism’ within the discipline of International Relations (IR) cannot accurately be reduced to any one assumption or set of assumptions. Nevertheless, here I am referring to the fairly broad (and relatively un-nuanced) way that the label is often invoked (and used as a term of self-description) within the discipline. ‘Realism’ in IR is generally associated with a set of propositions that include the following: (1) the state is the most significant actor in international relations; and (2) the international is a realm of amorality. As I acknowledge in my Introduction, note 7, a strong case can be made that some classical realist positions within IR do not concur with this second proposition. 2 A. Wendt, Social Theory of International Politics (Cambridge: Cambridge University Press, 1999).

38 Toni Erskine 3 4

Wendt, pp. 215–24. This frequently invoked division, however, may not be as wide as one might assume. Individual moral agents are often imbued with ‘artificial’ capacities within particular roles; institutional agents depend on ‘natural’ persons in order to function. Onora O’Neill makes this point in ‘Agents, Agencies and Responsibility’, in L. Wolpert (ed.), Science, Technology and Social Responsibility: discussion meeting held at the Royal Society on Tuesday 16 March 1999 (London: The Royal Society, 1999), pp. 13–19 (p. 15). 5 R. H. Jackson, Quasi-States: Sovereignty, International Relations and the Third World (Cambridge: Cambridge University Press, 1990). 6 See my Introduction, note 5, for a brief account of what I mean by ‘individualism’. 7 O. O’Neill, ‘Who Can Endeavour Peace?’ in D. Copp (ed.), Nuclear Weapons, Deterrence, and Disarmament (Calgary: University of Calgary Press, 1986), Canadian Journal of Philosophy, Supplementary Volume XII (1986) 41–73 (p. 51). 8 Daniel Warner provides a valuable analysis of the bearing that this notion has on theorizing about international relations in An Ethic of Responsibility in International Relations (Boulder and London: Lynne Rienner, 1991). 9 These terms are used to describe ‘collective responsibility’ by, among others, Warner. See Warner, pp. 62, 65, 66, 69. 10 See, among others, K. Jaspers, The Question of German Guilt [1947] (trans.) E. B. Ashton (New York: Fordham University Press, 2000). Jaspers, it should be noted, is careful to distinguish between different types of responsibility. He adamantly rejects any suggestion that all Germans took part in criminal activity and, therefore, were criminally guilty. Nevertheless, his notion of ‘political guilt’ comes close to the notion of ‘vicarious responsibility’ to which I am referring. For Jaspers, all Germans were to some extent politically guilty, or answerable for, the acts of the regime to which they belonged, even if they could be accused neither of supporting nor cooperating with this regime (pp. 43–4). 11 In The Guilt of Nations (New York/London: W. W. Norton & Company, 2000), Elazar Barkan explores cases of restitution for historical injustices that often find the descendants of both victims and perpetrators embroiled in questions of guilt, responsibility and compensation. For a proposal that collective responsibility extend to all of humanity, see H. Arendt, ‘Organized Guilt and Universal Responsibility’ [1948], in L. May and S. Hoffmann (eds), Collective Responsibility: Five Decades of Debate in Theoretical and Applied Ethics (Savage: Rowman and Littlefield, 1991), pp. 273–83. 12 The important point here is that some actions cannot be reductively prescribed or evaluated with reference to the actions of those individual agents that constitute the group. The terminology used to describe such actions varies. These actions might be called ‘corporate’ actions, and responsibility for these actions might, in turn, be described as ‘corporate’ in contrast with ‘collective’. (Collective responsibility, as above, is then understood to be distributive and shared between the individual members of the group.) Because the terms ‘corporate’ and ‘corporation’ have meanings in both law and business that are distinct from this usage, I have chosen not to employ them here. Nevertheless, the conceptual distinction that I am making can be equated with that which is sometimes made between ‘collective’ and

States and ‘Quasi-States’ 39

13 14 15 16

17

18

19 20

21 22 23

24 25 26 27 28

29 30

‘corporate’ notions of action and responsibility. (See Chapters 2 and 10 of this volume for examples of ‘corporate’ and ‘corporation’ used in this way, and, particularly, David Runciman’s account of this distinction between ‘collective’ and ‘corporate’ at the beginning of Chapter 2.) Following conventional usage, ‘collective’ and ‘collectivity’ are used throughout this volume, unless otherwise stated, as generic terms synonymous with ‘group’. Moreover, in this chapter, and elsewhere in the volume, ‘collective moral agency’ is compatible with attributions of what might be called ‘corporate responsibility’: responsibility that is not distributive between the members of a group. P. French, Collective and Corporate Responsibility (New York: Columbia University Press, 1984), pp. 46, 5, 10. Ibid., p. 13. Ibid. French, p. 85. French is quoting from D. Wiggins, ‘Locke, Butler, and the Stream of Consciousness: And Men as a Natural Kind’, in A. Oksenberg Rorty (ed.), The Identities of Persons (Berkeley: University of California Press, 1976), pp. 139–73 (p. 161). Although I think that this is an important criterion, it should be noted that some theorists would deny that even the individual human being fulfils it completely, arguing instead that individuals experience change and reconstitution over time. The phrase ‘networking institutions’ is used by, among others, Onora O’Neill in ‘From Statist to Global Conceptions of Justice’, in C. Hubig (ed.), Cognito humana – Dynamik des Wissens und der Werte (Leipzig: Akademie Verlag, 1996), pp. 367–79 (pp. 374–6). Chris Brown provides an alternative perspective in Chapter 3. The UN, moreover, presents the interesting case of a ‘collectivity of collectivities’. In ‘ “Blood on the UN’s Hands”? Assigning Duties and Apportioning Blame to an Intergovernmental Organization’, Global Society, XVIII (January 2004), I discuss both the problems that this poses for considering the UN to be either an agent or a moral agent, and how the UN might be conceived as such regardless. L. Melvern, ‘The Rwandan blood on the UN’s hands’, The Observer (3 September 2000) 18–19. See O’Neill, ‘Who Can Endeavour Peace?’, p. 63. See Q. Skinner, ‘The State’, in T. Ball, J. Farr and R. L. Hanson (eds), Political Innovation and Conceptual Change (New York: Cambridge University Press, 1989), pp. 90–131 (p. 102). Such a claim is both implicitly and explicitly made in the discipline of IR. See my Introduction, p. 3. See Frances Harbour, Chapter 4, pp. 76–7. O’Neill, ‘Who Can Endeavour Peace?’, pp. 65–6. Emphasis in original. Ibid. The lack of positive sovereignty experienced by some states is not an issue that O’Neill herself ignores. She has since provided a valuable analysis of some of the difficulties that weak states face in ‘Agents of Justice’, Metaphilosophy XXXII (2001) 180–95 (p. 190). Jackson, Quasi-States, p. 43. Ibid., pp. 1, 11 and 30–1.

40 Toni Erskine 31 32 33 34

35

36

37 38

39

40 41 42 43 44 45 46 47

48 49 50

51

Ibid., p. 164. Ibid., p. 22. French, p. 127. In addition to the relative weakness of the decision-making structure of quasi-states, one might also examine the nature of these structures. Indeed, the implications of different types of organizational and decision-making structures are brought into sharper relief when the class of quasi-states is examined. Many quasi-states have forms of government that are aptly described as exercising despotic rule. Instead of decision-making structures truly representing the collectivity, they embody the intent of the few who hold absolute power. In the case of the state, is a democratic decision-making structure more conducive to institutional moral agency? This issue needs to be addressed upon further refinement of the criteria for institutional moral agency. J. A. Widner, ‘States and Statelessness in Late Twentieth-Century Africa’, Daedalus, CXXIV 3 (1995) 129–53 (p. 148). She refers specifically to Rwanda and Somalia. Jackson, Quasi-States, p. 80. See also B. J. Ndulu and S. A. O’Connell, ‘Governance and Growth in Sub-Saharan Africa’, Journal of Economic Perspectives XIII 3 (1999) 41–66 (p. 49). Jackson, Quasi-States, p. 69. Widner, p. 147; R. H. Jackson, The Global Covenant: Human Conduct in a World of States (New York: Oxford University Press, 2000), p. 295. These writers employ different terminology to refer to homologous distinctions. See also A. A. Goldsmith, ‘Foreign Aid and Statehood in Africa’, International Organization, LV (2001) 123–48 (p. 124), and J. Herbst, ‘Responding to State Failure in Africa’, International Security, XXI 3 (1996/1997) 120–44 (p. 125). Jackson, Quasi-States, p. 29. Ibid., p. 168. Ibid., p. 177. D. Williams, ‘Aid and Sovereignty: Quasi-States and the International Financial Institutions’, Review of International Studies, XXVI (2000) 557–73. See Goldsmith for an overview of positions. N. van de Walle, ‘Economic Reform in a Democratizing Africa’, Comparative Politics, XXXII (1999) 21–41 (p. 29). Ndulu and O’Connell, p. 64. V. Haksar, ‘Moral Agents’, in E. Craig (ed.), Routledge Encyclopedia of Philosophy, Volume VI (London/New York: Routledge, 1998), pp. 499–504 (p. 499). C. M. Warner, ‘A Reply to A. G. Hopkins’, Review of International Studies, XXVI (2000) 321–25 (p. 324). My emphasis. O’Neill, ‘Who Can Endeavour Peace?’, p. 53. Michael Walzer coined the phrase ‘agent-of-last-resort’ in an essay in which he contemplates a duty to intervene in specific instances of humanitarian crisis. See M. Walzer, ‘The Politics of Rescue’, Social Research, LXII 1 (1995) 53–66 (p. 56). I discuss this final point in ‘ “Blood on the UN’s Hands?” ’ in the context of a duty to ‘empower’ institutions such as the UN.

2 Moral Responsibility and the Problem of Representing the State David Runciman*

There are two points in particular that I wish to make in this chapter. First, if states as they exist in the modern world are to be identified with moral agents,1 this only makes sense in the terms of what I will call ‘corporate agency’. In proposing this argument, I am relying on a distinction between the ‘corporate’ and ‘collective’ character of groups. According to this distinction, a collective entity is nothing more than the sum of its parts, whereas a corporate entity is somehow separate from these, and has an irreducible identity of its own.2 The corporate character of the state is what helps to determine its character as a moral agent. Second, making sense of the state’s agency also requires some engagement with the mechanism on which most modern political activity has come to depend; that is, the mechanism of representation. It is precisely because it is so hard to understand modern state action as a form of collective action that states need representatives to act for them. Yet, it is also because states can be acted for by their representatives that it is possible to see state action as consistent with a form of moral agency, albeit of a very distinctive kind. The two central categories for understanding the agency of states are therefore the ‘corporate’ character of the state itself and the ‘representative’ character of the actions that are performed in its name. Both of these categories of group action need to be clearly distinguished from the actions that are performed in groups ‘collectively’. I propose to expand on these distinctions in what follows, and to illustrate them with a brief discussion of their treatment in the most celebrated of all accounts of the distinctive character of the modern state, the one given in Thomas Hobbes’s Leviathan. I will then suggest three kinds of conclusion that might be drawn from this discussion, which relate to some of the issues and concerns that arise elsewhere in this book. 41

42 David Runciman

When an action is performed that has moral consequences, one of the questions to be asked is where responsibility for those consequences lies. How then might a group of human beings take responsibility for an action that has been performed in the name of the group? Certainly, it is true that the most straightforward answer is to say that they take responsibility ‘collectively’, meaning that responsibility is distributed among each member of the group as individuals, and no member of the group is able to escape this responsibility in so far as it attaches to any of the others. In this case, whatever attaches to the group attaches to all those persons who make up the group, and the group is therefore to be understood as some sort of aggregate of its component parts. Many groups of individuals do assume responsibility for the actions of any or all of their number in this way, and the law acknowledges a wide range of such relationships. In the legal arena the most familiar instances of such groups are, what are usually called, ‘partnerships’: where one of the partners incurs some liabilities, all of the partners have to pay; and when the group goes bankrupt, all of the partners, if the debts are large, are liable to go bankrupt as well. Partnership is still the preferred form of association of many groups in the legal arena, including many groups of lawyers (solicitors’ firms are invariably partnerships), most enjoy its benefits (the enrichment of the firm is the direct enrichment of each of the partners), but some discover the more austere side of collective responsibility as well, when the mistake of one of the partners bankrupts them all. Yet such groups do not have to be legal partnerships, and the burdens do not have to be simply financial ones. Indeed, it is perfectly possible to conceive of a form of the state wholly or partly in these terms. So, for example, Rousseau’s state is described by its author as a ‘collective, artificial’ entity,3 and each responsible member of that state is made responsible for the actions of the state as a whole. (Though the problem for Rousseau is that this cannot be the whole story, implying as it does that the state is nothing more than the actions of individuals. He, therefore, also seeks to construct for the state a corporate identity, founded on the notion of ‘the general will’, and it is out of the tension between the corporate and collective aspects of the state – the general will and ‘the will of all’ – that the most notorious difficulties with his account arise.)4 However, it is not possible to conceive of states as they exist and function in the modern world in these terms (which is why the modern state is nothing like Rousseau’s account of it). I will expand on the reasons for this in a moment, but they can be summarized as follows: first, it is never possible to know at any given moment who the individuals are

The Problem of Representing the State 43

that make up a modern state, because modern states are too large, and too many people within them qualify as citizens; second, the burdens incurred by modern states, particularly the fiscal burdens, are simply too great to be assumed by any group of individuals, however large; and third, modern states depend for their ability to act on their capacity to be acted for by others (above all, by governments). In other words, states depend upon the actions of that group of individuals whom Rousseau trusted least: representatives. A corporation is an entity that is understood to exist apart from the individuals who have brought it into existence (in the most familiar setting of the business corporation, its founders), apart from the individuals through whom it acts (its board of directors), and apart from the individuals who may have claims over its property (its shareholders). Corporations exist in order to allow notions of agency to hold even when there are no readily identifiable individuals to whom responsibility can attach: corporations may be said to act, to assume responsibilities, to sue and to be sued, but this is only because the individuals or groups of individuals who actually perform the actions in question are distinct from the corporation itself, and are merely representing it. Thus, corporations exist in the somewhat impenetrable philosophical territory that lies between agency (there is no question that corporations can act) and moral agency (it is highly uncertain that corporations can take responsibility for action). This territory, which was once a prime area of investigation for political philosophers, has of late, more or less, been abandoned to lawyers, who continue to mine it for all it is worth. Nevertheless, political philosophers ought not to abandon it, because the modern state is an association of this kind.5 This does not mean that modern political life has no room for notions of collective responsibility. Governments have in some political settings operated on precisely this principle. Responsibility for decisions of the British cabinet, for example, is assigned collectively – nobody can be a member of the cabinet and yet seek to avoid responsibility for what the cabinet does, even if they have voted against it. But two things need to be said about such groups. First of all, they are not themselves states, but merely their governments (or indeed, parts of their governments), and what is true of governments (that they are made up of identifiable individuals to each of whom can be attributed some portion of collective responsibility) is precisely what is not true of states. Second, because governments do not act as states but for states (i.e., they represent states), the responsibility that is assigned to their individual members is not responsibility for the actions of the state itself, but only

44 David Runciman

responsibility for the actions of the government. So, for example, if the government assumes huge debts in the name of the state, and those debts cannot be met, we do not expect the members of the government to assume responsibility for them, and to get out their own cheque books. States may sometimes flirt with bankruptcy, but governments never do, and that is one of the ways we can know that states are corporate entities rather than collective ones. The best we can hope for from governments by way of responsibility is that they should dissolve themselves – they should resign. This will be a collective act, because when the government resigns each individual member of the government resigns. What is not clear is that such an act will be one involving specifically moral responsibility. This is because the government that resigns is taking responsibility for its own actions precisely by denying that they are its own actions. Responsibility for the actions themselves (the debt, say) belongs to the state, and will thus become the concern of the new government, as and when it takes office. Moreover, the government that resigns assumes responsibility in the act of denying that it will ever perform another action again. The responsibility of such governments, while it is collective, is not fully moral, and perhaps needs to be understood as a distinct category in its own right. One possible term to describe the peculiar nature of this form of responsibility, adapted from the language used by Hobbes in chapter 16 of Leviathan (‘Of Persons, Authors and Things Personated’), would be ‘artificial responsibility’. This refers to the particular kind of agency that is exercised by political representatives, who are responsible for their actions but not straightforwardly accountable for them (the account – the debt – belongs to the state itself).6 If this responsibility is ‘artificial’, it therefore follows that it abides by its own man-made rules, as distinct from any ‘natural’ rules of moral conduct that might hold elsewhere. Another possible term, adapted from Max Weber’s lecture, ‘On the profession and vocation of polities’,7 would be ‘political responsibility’. This term describes that form of responsibility which holds for agents whose actions are their own (they are not simply following rules, and are therefore politicians and not ‘officials’), but who are not straightforwardly liable for everything they do. The politician who performs acts of violence assumes a kind of personal responsibility on Weber’s account, but not personal liability. Again, as Weber makes clear, what is distinctive about ‘political responsibility’ is precisely that it is a separate category of moral action, to be distinguished from personal morality, and to be understood on its own terms. What is certain is that ultimate moral responsibility for the actions performed by states does not reside with their governments, who merely

The Problem of Representing the State 45

represent them. Nor does it lie with their people, understood collectively. The burdens incurred by the actions of the state are not distributed among the people, because too many people in modern states either cannot or will not participate in the meeting of those responsibilities (some cannot afford to, some merely do not want to, but all, pace Rousseau, are citizens). Moreover, too many of those burdens are anyway not distributable. It is simply ridiculous to suppose that when the state is responsible for a death, the people assume the responsibility by making sure that each individual bears an infinitesimally small portion of it. But nor does it make sense for every citizen to take on full responsibility for what governments do in their name, since the things governments do are too much to be borne by individuals (and citizens, unlike governments, cannot take their share of responsibility by agreeing to resign en masse). Ultimate responsibility can only lie with the people if they are understood as a corporate rather than collective entity. This means that the state cannot be identified with any individuals or group of individuals, however numerous. Rather, if the state is to be held morally responsible, then it must be a moral agent in its own right. The difficulty with this position, of course, is knowing how to recognize this separate moral entity if it cannot be identified with any individuals or groups of individuals in particular. In purely legal terms, this problem can be resolved by allowing the law itself to recognize the corporation, in accordance with a formal set of rules. This means that the law must regulate the internal affairs of the corporation, in order to ensure that the corporate entity stands in the proper relation to those individuals or groups of individuals who represent it. But no such law exists at present for states. International law may recognize states, but it does so by recognizing their sovereignty, and thus repudiating responsibility for the relation that holds between the government and the state. (In effect, what international law recognizes are the governments themselves.) So the problem is this: if the state is to be a moral agent, it must have a corporate identity, yet the means for giving it a clear corporate identity are lacking. One could argue, as many philosophers have, that the state has a clear corporate moral identity independent of law. However, this argument has never been so persuasively put that any agreement has been reached on what allows us to recognize such entities: Culture? Nationhood? Territoriality? Spirit? It is also a characteristic of such arguments (e.g., those of Hegel), that they are not obviously less technical than the highly technical legal arguments which they are designed to supplant. The alternative is simply to say that the separate identity of the state is not established either by its presence in law or by the

46 David Runciman

presence of some recognizable extra-legal phenomena, but by the absence of something: that is, the absence of anyone else being willing to take final responsibility for the actions performed in the state’s name. Modern political life seems to depend upon our assuming that what states do is the responsibility of states rather than of named individuals, yet the highly individualistic, legalistic, and sceptical slant of much modern thinking means that we lack the ability to make sense of this assumption, or indeed to do anything more than merely assume it. The nature of this problem is best illustrated in the writing of Thomas Hobbes. If any political philosopher would seem to lay the groundwork for a theory of collective responsibility in the political sphere, it ought to be Hobbes. Hobbes’s account of the covenant that creates the state is the account of a collective act (each individual covenants as an individual).8 His account of the representative institution which results (‘the institution of the sovereign’) also makes sense in collective terms – the sovereign is authorized by and is therefore representative of every individual member of the state, each of whom is bound to take personal responsibility for the actions performed by the sovereign in his name.9 Moreover, Hobbes has no difficulty in stating that there is no meaningful distinction to be drawn between what the sovereign is responsible for and what the state is responsible for. (For example, there is no distinction on Hobbes’s account between the property of the state and the property of the sovereign – the sovereign owns all that we might be tempted to consider public property.)10 Yet, Hobbes does not leave us with this kind of theory in his Leviathan. There he also establishes, unambiguously, that the state is more than merely collectively constituted, because the sovereign must represent the single ‘person’ of the state, and thus something more than the aggregate of individuals who have covenanted in the state of nature.11 He says this because he senses that the continued life of the state depends upon its having its own identity, a ‘real Unitie’ as he calls it, distinct from the particular identity of the sovereign and the people. What he cannot provide is any account of how this single person is to be identified, since the only person capable of recognizing such corporate bodies is the sovereign himself, acting in the name of the state (the argument therefore becomes a circular one). The best we can get from Hobbes is a sense that the independent moral identity of the state is a kind of necessary fiction, something that we have to assume if the state is not to be reduced to a series of endless and fragmentary personal power relations, but which we can never establish. It is, in a sense, the one wishful element of Hobbes’s theory, but it is also the part of

The Problem of Representing the State 47

Hobbes’s theory that comes closest to describing the conditions of state agency in the modern world. We assume that states can act in their own right, yet their actions always depend upon the actions of their representatives. So, we say that states are ultimately responsible for what is done in their name, but they cannot ultimately take responsibility for it, since whatever the state does is always the action of some or other representative. States are not ‘artificial’ moral agents (governments are); the moral agency of the state is a fiction.12 I want to suggest three conclusions that might be drawn from this account. They all derive from the somewhat paradoxical nature of the thesis: that states both are and are not moral agents; or, to put it another way, that states both must be able to assume responsibility for action and can never be seen to take responsibility for action. The first conclusion is that there is only so far political theory, or, more grandly, political philosophy, can go here (as evidenced by Hobbes). The moral agency of the state depends upon individuals suspending their disbelief, and acting as though the state has a moral agency that it in fact lacks. It so happens that individuals seem to be quite able to do this, and modern political life is founded on just this kind of wishful thinking, but it has been achieved for the most part despite rather than with the aid of philosophical reason, which cannot be expected to let the matter rest there. Just as no novel can survive intact if subjected to a remorseless questioning of its philosophical presuppositions, nor can the fiction of the state’s moral agency. This is not to argue that what is needed is some more flexible and open-ended form of philosophical reasoning: the somewhat paradoxical thesis is not a post-modern one, if only because it makes sense within the terms of modern politics, and describes the institution on which modern politics depends. Nor is it to argue that some philosophies of the state (Hobbes, Weber) are not more sensitive to this problem than others. It is merely to suggest that the particular quality of the moral agency of the state will always be contingent upon the way in which individuals and groups of individuals choose to imagine it, since it is imaginary. Second, it is one of the ironies of this account that ‘quasi-states’ are less problematic bearers of moral responsibility than states are. This is because one of the characteristics of what are called quasi-states is that they tend to personalize various forms of political authority, rather than abstracting it away from the individuals who hold power at any given moment.13 Where this is so, there is no difficulty in assuming that the individuals who hold power at any given moment do not simply represent, but actually embody ‘the state’ and are, therefore, able to bear

48 David Runciman

moral responsibility in its name. To put it very crudely, it is reasonable in such circumstances to expect that the debts accrued by the state might be paid for by the government, if the government has appropriated for its own personal use many or most of the assets of the state. Likewise, moral responsibility for the state’s acts of violence is easier to apportion where the state’s acts of violence take on the appearance of personal vendettas. The problem in such cases is not that of identifying the moral agent, but of holding to account those who tend to emerge. This helps to explain the moral asymmetry in the response of most (but by no means all) people to the ‘war crimes’ committed in the Balkans: Slobodan Milosevic is held to be personally liable for actions undertaken in the name of the state in ways in which Tony Blair is not. The problem with Milosevic has until recently been the practical problem of getting hold of him (though now that he has been got hold of, some of the more intractable problems relating to the distinction between personal, collective, and corporate responsibility may prove unavoidable). The problem with Blair would be knowing how to punish him, given the difficulty of punishing corporate acts. A lot depends of course on how we choose to distinguish a quasi-state from a state, which, as in the case of Serbia, will always be itself, a political decision. But the question of personal liability I take to be one possible way of distinguishing conceptually between the two. Finally, because I have talked a certain amount about Hobbes, and because I have doubts about the capacity of the state to behave in any straightforward way as a moral agent, what I have said might perhaps be seen to come under the heading of what is usually called ‘realism’.14 But I do not think ‘realism’ is the word for it at all. I take from Hobbes the idea that even the most ‘realistic’ account of politics has to leave room for the moral agency of the state. And because, like Hobbes, I do not see how this idea is compatible with a bluntly realistic account of politics, it means that no theory of realism is complete unless it leaves room for a good deal of fiction. The idea that politics is in some sense a ‘fictional’ activity sounds post-modern, like an attempt to get away from the reliable certainties of conventional notions of agency. But, in fact, the fiction of the state’s moral agency – the fiction of its corporate character – is one of the conventional certainties of modern politics, and any attempt to get away from it, and to resolve the moral identity of the state into an entity that can be collectively, or reductively, defined, is a move beyond the conditions of modern politics into something else, as yet unknown.

The Problem of Representing the State 49

Notes *

An earlier version of this chapter was presented at the BISA/ISA Joint Special Workshop, ‘Can Institutions Have Morals?’, held at the University of Cambridge, 17–19 November 2000.

1 There is an important distinction to be made between identifying states with moral agents and identifying them as moral agents: it is in the character of states that their moral agency depends upon the moral agency of others, that is, their representatives, rather than being something that the state can establish by its own actions. It is hoped to bring out the force of this distinction in what follows. 2 This is a relatively narrow use of the term ‘collective’. It can also be used in a more generic sense, as it is elsewhere in this volume, to refer to any identifiable group, whatever its formal character. This is also the usual sense of the term ‘collectivity’. It can, therefore, make sense to speak of groups that possess a ‘corporate’ character as ‘collectivities’. These terms for group action are notoriously difficult to pin down. In the words of the English historian F.W. Maitland: ‘ “Collectively” is the smudgiest word in the English language’ (F.W. Maitland, The Collected Papers of Frederic William Maitland: Downing Professor of the Laws of England. Volume III (ed.) H. A. L. Fisher (Cambridge: Cambridge University Press, 1911), p. 318). 3 J. Rousseau, The Social Contract (trans.) M. Cranston (Harmondsworth: Penguin, 1968), pp. 64–5. 4 The most celebrated account of the possibility of constructing the state on a ‘partnership’ model, as opposed to a ‘corporate’ model, is the one given by Michael Oakeshott in part III of On Human Conduct (Oxford: Clarendon Press, 1975), ‘On the character of the modern European state’. However, Oakeshott’s characterization of both Hobbes and Rousseau is opposed to the account I give here: for Oakeshott, Rousseau is a theorist of the ‘corporate’ state and Hobbes of the ‘partnership’ state. Oakeshott is only able to achieve this characterization by ignoring the ways in which each author explicitly sought to embrace the opposite characterization as well. 5 A more detailed version of the argument that states are to be understood as corporations is given in D. Runciman, ‘Is the state a corporation?’, Government and Opposition, XXXV (2000) 90–104. 6 It is one of the many subtleties of Hobbes’s account of the agency of the state in Leviathan that although he is clear that whatever is done by the state must be done by the sovereign, it is not true that whatever is done by the sovereign is the action of the state; in chapter 23 (‘Of the Publique Ministers of the Sovereign Power’) he takes great pains to establish that the ‘personal’ life of the sovereign is not necessarily to be identified with the life of the state (and so, e.g., the sovereign’s personal servants are not to be identified as public servants, unless the sovereign explicitly wills it). See T. Hobbes, Leviathan (ed.) R. Tuck (Cambridge: Cambridge University Press, 1996), pp. 166ff. 7 See M. Weber, Political Writings (eds.) P. Lassman and R. Speirs (Cambridge: Cambridge University Press, 1994). 8 See Hobbes, Leviathan, chapter 17. 9 Ibid., chapter 18.

50 David Runciman 10 Ibid., chapter 24. 11 Ibid., chapter 16. 12 This distinction is discussed in more detail in D. Runciman, ‘What kind of a person is Hobbes’s state? A reply to Skinner’, The Journal of Political Philosophy, VIII (2000) 268–78. 13 Here I am responding to one of the points made by Toni Erskine in Chapter 1 regarding the respective features of ‘empirical states’ and ‘quasi-states’, and their relative capacities to bear responsibilities. Erskine takes the concept of a ‘quasi-state’ from R. H. Jackson, Quasi-States: Sovereignty, International Relations and the Third World (Cambridge: Cambridge University Press, 1990). In the example below, I am extending the application of this concept beyond those states in sub-Saharan Africa upon which Jackson and Erskine focus. 14 I understand ‘realism’ to presuppose that international politics is about power rather than morality, and that it is a mistake to assume that political actors in the international arena are constrained by any rules other than those of self-interest.

3 Moral Agency and International Society Reflections on Norms, the UN, the Gulf War, and the Kosovo Campaign Chris Brown*

Politicians, op-ed page contributors, and informed public opinion are, quite characteristically, content to posit the existence of an ‘international community’ – albeit often not without some misgivings. There is no generally agreed understanding as to what the term means, but it is clear that the international community is presumed to possess agency, the ability to act in the world. Moreover, this agency is explicitly moral, in so far as a characteristic usage is to suggest that the international community has a duty to do such-and-such – come to the aid of famine victims, protect the human rights of the East Timorese, or whatever. Quite frequently the term is used in the context of moral failure – thus, for example, the international community will be castigated for having failed to prevent the Rwanda genocide, or for failing to take the necessary measures to cope with environmental degradation. Even so, the continued use of the term even in a context of failure implies the existence of some kind of collective agency-possessing body, albeit one that frequently lacks the necessary will to do the right thing. The purpose of this chapter is to investigate whether there is, actually, some sense in which a formal or informal collective body of states could be said to possess either agency as such or, more specifically, moral agency.1 Scholars in the mainstream of contemporary International Relations (IR) shy away from this conclusion. The structural realist approach to the world rests on the working assumption that the international system is generated by the self-regarding actions of its component states, and that while this system may indeed constrain the behaviour of actors it does not, itself, possess agency. The notion of an international 51

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community is a fiction and, more to the point, an unhelpful fiction, for two reasons: first, it draws attention away from the fact that states are the key actors in international relations – thus, when the international community is described as ‘acting’ it is actually states who are exhibiting agency, whatever community-oriented explanation they may give of their action. Second, it is unhelpful because it implies that action can or should be taken on behalf of the common good, whereas the mainspring of international action is the interests of states, their desire to survive (or, perhaps, to dominate). Use of the term ‘international community’ implies the possibility of altruism and self-sacrifice on the part of states, but such behaviour is not to be looked for. Interestingly, many radical writers would agree, albeit with the twist that state-interest is shorthand for the interests of the ruling class. Thus, Noam Chomsky has developed a whole school of interpretation on the principle that international action by the United States is always driven by the needs of US capital, and, in Britain, John Pilger’s columns in the liberal press are devoted to unmasking the evil intent behind conventional references to the international community – a particularly fine example being his suggestion that UN action in East Timor in the Autumn of 1999 was designed to preserve the province for Indonesian/ American/ world capital.2 A certain amount of scepticism about the idea of an international community – although, perhaps, not as much as Pilger or Chomsky demonstrate – is obviously justified, but it would be rash to dismiss the term as altogether a matter of smoke-and-mirrors. This is a case where, as usual, it would be sensible to follow the method of Aristotle, who in investigating issues of this kind always began with ‘what people say’ about a particular topic, moving from there to a wider and more thoughtful interpretation of conventional wisdom, but an interpretation that can be related to its starting point.3 In other words, the working assumption ought to be that if it is commonly thought (i.e., if ‘people say’) there is an agency-bearing international community, then it is unlikely that this is simply an illusion – although quite probable that when we look more deeply we will see that a great deal of refinement of the notion will be required. It is obvious where this refining process must begin. The convergence of perspective of structural realism and Chomskyan radicalism is hardly surprising because each in its different way stands opposed to the classical liberal internationalist – and perhaps even classical realist – perspective, which is prepared to give at least some intellectual credence to a version of the notion of an international community. In particular, the notion of a ‘society of states’ or ‘international society’ which is the

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master concept of the English School (ES) clearly stands in some kind of relationship to the idea of an international community; it is here if anywhere that we should look if we expect to find a version of the latter idea which has some intellectual substance and is not simply a rhetorical ploy. The purpose of this chapter is to examine the notion that a society of states might, in some way, possess agency, the capacity to act, but the hope also is that, at the same time, something of interest might be said in general of the notion of an international society. The ES is, at present, experiencing something of a revival, with the possibility of some kind of quasi-formal research programme emerging; moreover, the recent ‘constructivist’ turn in US international relations theory has, in some versions, clear and explicit affinities to the ES, including the employment of the notion of an international society.4 In short, the subject is of academic as well as more general interest.

Agency and the idea of an international society The first point we ought to note is that international society is not a ‘society’ in the sense in which sociologists characteristically understand that term. A society is, from their point of view, a term with a very specific meaning and one of great portent: although they might disagree among themselves as to how it should be used, they agree it is not a term to be used casually. Thus, from the perspective of Parsonian analysis, and, more or less, that of Luhmannite modern systems theory, a society is the social system that encompasses all other social systems within itself. From this angle it is a moot point whether one could envisage a ‘world society’ or a ‘society of societies’ replacing national societies as the main focus of interest, but it is quite clear that a ‘society of states’ or ‘international society’ is a misuse of the term.5 Members of the ES, and other IR theorists who use the term, are unlikely to be much concerned by, or even aware of, this position. To the ES, to refer to an international society is a way of drawing attention to the (posited) norm-governed nature of relations between states. The point of reference here is not sociological theory, but a comparison with the idea of an international system, which is understood to be the key concept of neo-realist thought, and is taken to refer to the set of essentially non-normative relationships between states which emerge simply as a result of the operation of power politics.6 The idea that a set of relationships constitute a ‘society’ simply by virtue of the fact that they are norm-governed would be anathema to most sociologists, but such is the usage of this term of art in the discourses of IR. For ES theory, a ‘society’

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of states could be termed an ‘association’ or a ‘club’ of states without any real loss of content, whereas this would be an impossible move for almost any sociologist. This contrast between the ES’s version of a society and that held by most sociologists may seem at first sight to be a digression, but is, in fact, of some significance, because, from a sociologist’s point of view, the exercise of agency by ‘society’ is highly problematic. Everyday usage is instructive here – when we say ‘society is to blame’ for some particular event, the intention is generally ironic. Such formulations are widely understood as misplacing agency; this was what Mrs Thatcher intended to draw attention to when, with characteristic sensitivity, she made her famous remark that there was ‘no such thing as society’, only individuals and families. Her point was that to blame ‘society’ for anti-social behaviour was to dislodge responsibility on to some amorphous ill-defined external force, which, in practice, meant that no one was to blame; social factors may be important in influencing behaviour, but society itself does not act. On the other hand, clubs and associations do act. This is why the IR theorist’s understanding of international society does open up the possibility of a serious discussion of agency. Clubs may possess legal personality and are characteristically attributed with the ability to act. Thus, to take a trivial example to which I will return later, the sentence ‘In February 2000, Southampton Football Club (FC) appointed a new team manager’ makes perfect sense: moreover, clubs are believed to possess the capacity to behave morally – thus, again, it makes sense to say that the same club would have been ‘wrong’ to continue to employ its previous manager (who was facing trial for a serious criminal offence).7 Now, everyone understands that Southampton FC is an abstraction that may possess legal personality but cannot actually perform the task of firing and hiring. Instead, this is done by a Board of Directors and a Chairman of the Board who act on behalf of the shareholders – although, actually, most of the voting shares are owned by the Board – and who therefore exercise agency on behalf of the club. So, when the fans say things like ‘the club should fire its manager’ they know and we know that this is shorthand; an expanded legally-minded version of this sentence would be that the Board should fire the manager, while a politically accurate version would be that the Chairman, who has a plurality of the shares and is in effective control, should do the job. Is any of this relevant to the ‘society of states’, which, unlike Southampton FC, is not a legally established public corporation, but a club in a much looser sense of the term? Are there individuals (actors) who stand in relation to international society, as the Chairman and Board stand in relation to Southampton FC, even though there clearly are

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relevant differences between the two forms of association? This is the question that this chapter attempts to answer. Agency, international society and the UN We have now determined the shape of the argument – in so far as international society (which from now on will be employed as a place-holder for the notion of an international community) resembles a club or association of states, it is not out of the question to imagine it possessing agency. Where do we go from here? First, it is clear that no collective body stands to the society of states in quite the way that the Board of Southampton FC stands to Southampton FC. The Southampton Board is a legally constituted body. Southampton FC plc is a publicly quoted corporation whose Board is regulated by UK Companies legislation; they have not only the right, but also the duty to act on behalf of the club in certain specific (and specified) circumstances. The club’s objective is to play professional football at the highest possible level, which is generally operationalized as staying in the Premiership, and thereby to maintain financial solvency.8 The Board is legally endowed with agency in order to act in pursuit of this objective. None of this can be directly applied to a discussion of the society of states but it may have some indirect resonance; international society also exists in the context of a body of (international) law, and it might be argued that the global body created under international law and tasked with maintaining international peace and security – the United Nations (UN), perhaps more specifically, the UN Security Council (UNSC) – acts on behalf of the society of states, that is, possesses agency (and therefore may possess moral agency – the capacity to act on the basis of moral principles). The rest of this section will examine this claim. The attribution of a key role to the UNSC as the bearer of agency on behalf of international society rests on the UN Charter, the behaviour of its members, including the most powerful of them, and, to an extent, on public perception (‘what people say’). Although the Charter of the UN is more confused about the relationship of the Organisation to international law than was the Covenant of the League of Nations, the signatories of this international treaty do assign to the Security Council (SC) primary responsibility for the maintenance of international peace and security, while retaining for themselves the right of self-defence (but only until such time as the SC has taken over the matter – Article 51). Does this transfer of the right to act from individual states to a collective body amount to the creation of an agent capable of acting on behalf of international society?

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States sometimes – indeed quite frequently – act as though the UNSC does possess this capacity. Thus, during the Gulf Crisis of 1990–91, the United States and its coalition partners went to considerable pains to achieve resolutions of the SC which legitimated their actions – for example by calling upon UN members to use ‘all necessary means’ to bring about the withdrawal of Iraq from Kuwait, this turn of phrase being generally accepted code for the use of military force. That this was achieved appears to have been quite important in swinging key votes in the US Senate behind President Bush’s stand, and, more generally, in swaying significant parts of Western public opinion behind the action (which, incidentally, seems to suggest that the public at large, at least sometimes, correlates their notion of the ‘international community’ with the UN). Similarly, the lack of explicit UNSC authorization for NATO’s action in Kosovo in 1999 was widely perceived as embarrassing; in this case the key phrase ‘all necessary means’ was not to be found in the relevant resolutions – although other phrases almost equally supportive of action were – and this lack certainly made it at least marginally more difficult to generate public support for this action. As noted above, one reason for the desirability of SC legitimization for action is that public opinion – perhaps especially Western public opinion – is keen that it should be present. More generally, the failings of the ‘international community’ are frequently laid by the public at the door of the UN, which is deemed to have failed to act with sufficient speed or purpose in Rwanda, Somalia, or wherever. The problem with this position is that it is insufficiently sensitive to the complexity of the relationship between the UN as an institution and its members – a similar problem exists with respect to the attitude of the states themselves and is the main reason why the idea that the SC could act as the agent of international society is not entirely satisfactory. The point is, the UN was not just created by states; its central agencies actually consist of states – fifteen in the case of the UNSC, five permanent. These states do not simply pursue the common good of the society of states; they pursue their own interests even in the case of a clash with the common good, or, perhaps, to get the political psychology right, they define the common good in such a way that it corresponds to their own interests, and, moreover, the Charter actually authorizes them to act in this way; the voting provisions of the UNSC give a veto to the permanent five members on the, tacit, understanding that they will use it to further their own interests (Article 27.3). These states, at least, have not transferred their capacity to act as agents to the SC.

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So, when the SC gave authorization to use ‘all necessary measures’ in the Gulf but not in Kosovo what we see is not the exercise of discriminating moral judgement by the Council acting as a collective body, but, in both cases, the operation of political judgements based on calculations of interest. Seen in conventional moral terms, preserving the human rights of the Kosovo Albanians was a rather better cause than preserving the property-rights of the Al Sabah family in Kuwait, but, for a variety of reasons, some good some bad, in 1999 Russia and the People’s Republic of China were not prepared to abstain in the way they had in 1990/91. A resolution to condemn the Kosovo operation was defeated in the Council by twelve votes to three, but the three included two permanent members, which clearly indicated that a positive resolution in support would fail. There are, of course, very good reasons why the veto power exists – the experience of the 1930s demonstrated clearly that any attempt to force a Great Power to compromise its conception of its core interests by a Council vote was doomed to embarrassing failure, and the logic behind this position remains as sound today as it was then – but these good reasons also point to the disadvantages of regarding the UN or the SC as agents of international society. These are not bodies that have some kind of collective existence apart from their members. In so far as they exercise agency on behalf of international society at all they do so hesitantly, and, much of the time, they will simply be unable to act. Returning to the earlier analogy, the relationship between the UN’s members and its organs is rather different from the relationship between Southampton FC and its Board of Directors. In one (legal) sense the Board actually is the club whereas the UNSC clearly is not even legally the same thing as the society of states; but the most important difference here may lie in the goals the two bodies pursue. In Terry Nardin’s terms, Southampton FC is a ‘purposive association’, the Board, fans and team are united around a clearly defined purpose: international society, on the other hand, is a ‘practical association’ with no purpose other than to facilitate the coexistence of its members in peace and justice.9 In the first case, the Board are expected to do – or try to do – whatever is necessary (within the rules) to achieve the goal; in the second case, in principle, it need not be necessary to do anything at all – the exercise of agency only becomes an issue when there actually is a threat to international peace and security, otherwise the system works perfectly well without anyone doing anything. The problem here is that whereas most of the time a very weak sense of agency is actually more than is necessary, when action is required, a much stronger sense is called for – and not provided by the SC. Moreover, pace Nardin’s position, it is by no

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means clear that preserving international peace and security is the only goal of international society; the development of the international human rights regime post-1945 suggests that nowadays the traditional practices of international society can no longer be understood as the sole basis for international peace and justice (as Nardin’s own account somewhat uneasily recognizes). The attenuated ability to act that might have been sufficient in the old international society no longer seems to correspond with what is nowadays meant by the term – to use an ES formulation, a solidarist rather than a pluralist reading of international society seems to be increasingly favoured.10 As the example of Kosovo cited above illustrates, the absence of UNSC backing does not necessarily prevent international action. NATO in the spring of 1999 certainly considered itself to be acting on behalf of the international community even though this action was not legitimated by a positive vote in the UNSC. Their claim, set out very clearly in Tony Blair’s speech ‘The Doctrine of the International Community’ (Chicago, 27 April 1999), was that the unwillingness of the UN to act was a sign that something was wrong with that body, but that in the absence of UN approval, action could still be legitimate provided it met certain criteria. The criteria themselves bear some resemblance to the conventional criteria for a ‘Just War’ (albeit containing a reference to the interests of the states concerned in a way that such conventional criteria do not) but what is interesting in the context of this chapter is the claim that a group of states could exercise agency on behalf of the international community without UN sanction. What is to be made of such a claim?

‘Informal’ agency and international society In principle, it might be thought that, in a time before the emergence of global organizations ostensibly devoted to the maintenance of international peace and security, states would be obliged to fend for themselves and, thus, would be unlikely to give a high priority to the interests of international society. In practice, the actual experience of the Westphalia system prior to 1919 was rather different. First, as Stephen Krasner has emphasized, collective action in support of societal goals (the protection of religious minorities) was actually provided for by the Westphalia Treaties.11 Then, at least part (although perhaps only a small part) of the motivation behind the various coalitions formed against the French revolutionary and Napoleonic state was the desire to protect the institutions of the ‘one great republic’ that, according to Burke, was the eighteenth-century society of states.12 Again, the suppression of the

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slave trade in the nineteenth century was a British project that eventually was taken over by the wider international society.13 However, the most systematic attempt to give international society the capacity to act came in the Congress System that followed the Napoleonic Wars, and in its successor the more informal Concert of Europe.14 The Congress System, as the name implies, was based on a series of Congresses at which the states of Europe, under the direction of the Great Powers (Britain, France, the Habsburg Empire, Prussia, Imperial Russia), rearranged the map of Europe in the interests of the restoration of peace under the old, dynastic, regime.15 The Congress System was relatively short-lived, essentially because the ideological consensus upon which it rested – the ‘Holy Alliance’ – was unstable. Britain declined to sign-up on spurious technical grounds – because of the madness of King George there was, allegedly, no one who could sign this alliance of sovereigns – and after the July Revolution in France in 1830, the pretence that the two ‘liberal’ powers were in agreement on international issues with the others was abandoned. Nonetheless, while the Congress System lasted it actually took positive action on behalf of its conception of the needs of international society, including authorizing military interventions in Spain and Italy. The Concert of Europe was a more informal affair, based on the idea that in the face of a potentially dangerous crisis the major European powers should attempt to resolve matters acting together, that is, in concert. Although the overall impact of the Concert is debatable, some crises were actually resolved in this way – the Berlin Conference of 1878 on the Balkans being a kind of high spot in this respect. The Congress System and the Concert of Europe involved different levels of institutionalization of the notion that the Great Powers of Europe had some kind of collective responsibility to ensure that the society of states functioned as smoothly as possible. These powers took this role upon themselves without the sanction of an international treaty (although Congresses and Conferences often led to the latter); their mandate was their power, their capacity to put into effect their collective will. They were the agents of international society because they declared themselves to be so, and because they could back up their interpretation of the needs of that society by force if necessary. There are, of course, two obvious drawbacks to this state of affairs. In the first place, it is most definitely not clear that the interpretation of the needs of international society agreed upon by the Great Powers will meet with the approval of everyone else – indeed, part of the normal functioning of the Congress/Concert when it did function ‘properly’ was the

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sacrifice of the interests of minor powers in the cause of international peace and stability. Second, in practice the more serious drawback to the actual operation of the Congress/Concert System was the lack of consensus among the great powers. It was only for a short period after 1815 that all the majors shared, at least to some extent, in the reactionary values of the Holy Alliance and it is no accident that this was the one period in the nineteenth century that effective agency could be attributed to the society of states – for a short time the Congress System worked (albeit contrary to the wider interests of humanity). The Congress/Concert idea survives into the twentieth century in a number of forms: the composition and powers of the UNSC was partly influenced by the vision of what the major powers could do if they worked together in concert, and the more recent practice of forming Contact Groups to oversee diplomacy in some particular area (Namibia, Bosnia) is also reminiscent of the Concert/Congress idea. However, a more common late twentieth-century version of the concert idea is the notion of a ‘coalition of the willing’ – a group of states who take it upon themselves to act on behalf of international society, but who differ from the older idea because they do not necessarily involve all the great powers acting in concert. Thus, in 1991, a coalition of the willing, built by and around the United States, reversed Iraq’s aggression in Kuwait with the approval of the UNSC, and hence the acquiescence of Russia and China, but without their participation; in Kosovo in 1999, NATO was the focus for another coalition of the willing, which, tacitly, included some non-NATO members (Romania and Bulgaria, for example) but which was actively opposed by both Russia and China. How are such coalitions to be understood? The models of the posse comitatus and the vigilante band have been proposed as heuristic aids – the former being an informal but legally constituted body, the latter not being legally constituted but, at least in principle, being intended to enforce the law – and there is a certain amount of mileage to be gained from playing around with these categories. Certainly the idea of the United States as an international Sheriff has become a cliché especially with critics of the US role in the world (who seem to forget that the Sheriff is a legal officer with authority to act and to recruit a posse, unlike the leader of a band of vigilantes). However, there are two points against these understandings of the new coalitions of the willing – or perhaps the same point that takes two forms. First, posses and vigilante bands are static bodies that are agents of the existing legal order. They have no capacity or authority to change the norms they are enforcing; in so far as they act as the agents of

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international society they do so on the basis that they are enforcing an agreed body of law, an existing normative consensus. The problem with this is that the norms of international society are currently undergoing quite substantial change; the emergence of an international human rights regime post-1945 poses a challenge to conventional understandings of sovereignty and non-intervention (although, as noted above, conventional understandings are themselves open to interpretation and revision) and the need to negotiate a safe path between these two, apparently conflicting, norms requires a degree of flexibility that informal coalitions of the willing are unlikely to possess. The point here can be made by way of a contrast between the Gulf in 1990/91 and Kosovo in 1999 – in the former case the well-established principle of nonaggression had been challenged and the idea that a posse was formed to meet this challenge has a certain amount of plausibility; the fact that the coalition acted under, perhaps rather distant, UN authority reinforces the analogy of the posse. In Kosovo in 1999, on the other hand, new ground was broken. The sovereignty of one UN member was challenged by others in the name of the human rights of a minority population. As noted above, the protection of minority rights is not unprecedented under the Westphalia System, but in a modern context this has to be seen as an example of a coalition of the willing attempting to generate a new norm, without the backing of a UN Resolution and without the degree of consensus needed if new customary international law is to be created. It is difficult to see how a self-constituted and self-legitimated group of states could act as the kind of agent who would be needed in order to carry out this act of norm-creation.16 Second, or perhaps another way of making the same point, the terminology of a posse or a vigilante band empties the idea of a coalition of any substantive content – they are simply groups of states who have come together to enforce a particular norm, or bring about a particular result; they have nothing (much) else in common. Again, the Gulf in 1990/91 fits this description better than Kosovo in 1999. The Gulf War coalition included traditional Arab states, some radical Arab states (Syria in particular) and a selection of Western liberal democracies. What these states had in common was a mix of distrust of Saddam Hussein, respect for the UN Charter and allied status with the United States – there was no ideological consensus among them, which was why the goals of the coalition were tightly defined, and, for example, ruled out a serious attempt to directly topple the Iraqi regime. In 1999, on the other hand, the coalition consisted of NATO and a few East-central European friends, all of whom were (nominally at least) democracies, and the actual states

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that fought the war and subsequently occupied Kosovo, the United States, France, Britain, Germany, and Italy, were established liberal democracies, with broadly similar institutional structures, and long-established links which predated this particular issue (unlike the 1990/91 coalition). In the nineteenth century the Congress System was at its most effective when it represented the society of states from a position of ideological consensus; the members of the Holy Alliance had a clear (reactionary) sense of what ought to happen in the world, an interpretation of the needs of international society which was substantive and not just formal – thus, a figure such as Metternich did not simply wish to see existing law obeyed, he was clear that the interests of international society would be best served by intervening in the domestic affairs of its members to ensure that disruptive forces could not get a foothold. Can we see the Kosovo Coalition as, in some sense, a modern equivalent to the Holy Alliance, but committed to a substantively humanitarian conception of the needs of international society, as opposed to the reactionary goals of the earlier body? The analogy is far from perfect. The Holy Alliance, at least for a short period, contained all the major powers, and represented the interests of a great majority of the minor sovereigns of Europe (as opposed, of course, to their peoples). The Kosovo Coalition obviously did not have the support of two of the UNSC permanent five members, and it is very much moot whether minor states in the UN actually shared the coalition’s conception of what it was doing – many states and peoples clearly believed that the Kosovo campaign was simply an expression of US/NATO power. On the other hand, as suggested above, it may not be too fanciful to see the Kosovo Coalition as the agent of a new conception of international society based on a substantive understanding of the requirements of humanitarianism. The influential German philosopher Jürgen Habermas has analysed this claim in his account of a war fought ‘on the borders of justice (Recht) and morality’.17 He is rightly somewhat sceptical of the ability of NATO to authorize itself to act, but, in the face of what he calls the current ‘under-institutionalisation of the law of global civil society’ he does not dismiss their claim to represent a nascent democratic–humanitarian consensus even without a UN mandate; nor does he regard as wholly out of place the view that NATO’s action can be seen as a step along the road towards the transformation of the classical law of nations into the cosmopolitan law of a global civil society. At this point any Chomskyan or realist who has not yet given up in disgust will be horrified by this characterization of the ‘new military

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humanism’ – and with some reason.18 There is very little evidence to support the view that the Kosovo War was deliberately provoked in the interests of American imperialism – what little there is relates to the lack of impartiality on the part of the United States at the Rambouillet Conference, which was explicable, surely, in terms of then-President Milosevic’s record over the previous ten years in Bosnia – but there are very good reasons to be worried by the idea that a coalition of liberaldemocratic states is likely to engage in a crusade to spread humanitarian values throughout the world, claiming to be acting as the agents of a new moral consensus. Apart from the political disorder such a crusade would generate, it has to be emphasized that ‘humanitarian war’ is a profoundly ambiguous idea. It may, in certain circumstances, be legitimate to refer to the causes of a particular war as humanitarian, but the conduct of the war itself is another matter altogether. The Kosovo campaign may have been ‘virtual war’ for the NATO military forces but it was very real for the Yugoslav army and for Yugoslav and Albanian civilians.19 If this is what is involved in the proposition that the Kosovo Coalition represents the future for the idea of agency in international society then there is very good reason to be apprehensive.

Conclusion Fortunately – or, perhaps, unfortunately from the perspective of future victims of state terror – it is very unlikely that the Kosovo campaign will constitute this kind of precedent. Although, at the end of the day, NATO appeared to achieve its immediate objectives (and without being obliged to fight a ground war), none of the NATO leaders give the impression that they want to see any kind of re-run in the event of a similar crisis emerging in the future; in any event, whatever lessons are to be drawn from Kosovo have to be seen in the context of the general perspective on agency and international society set out above. If it is acknowledged that the ‘social’ element in international society (the club of states) is minimal, amounting to no more than the assertion that relations in the society of states are grounded by the norms, practices, and customs of international law and diplomacy, then it becomes clear that this notion of society is difficult to stretch to encompass a liberal-democratic humanitarian crusade. Moreover, although it is suggested above that some kind of informal ‘coalition of the willing’ may, on occasion, exercise agency – even moral agency – on behalf of the liberal democracies, there is no body that acts for the society of states as a whole in the kind of direct way that would enable such a crusade to be

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legitimately initiated. It may be that in the long run a global moral consensus of the kind that Habermas envisages will emerge – and it is very much in the interests of the oppressed and downtrodden that it should – but, for the time being the world is more likely to continue to suffer from the effects of the lack of such a consensus being associated with international society than from a surfeit of good intentions on the part of an emerging liberal-democratic consensus. In short, as predicted at the beginning of this chapter, those who posit the existence of an international society that can act morally in world affairs are not wholly mistaken, but the values and norms upon which that society can act are limited in range and scope. They are better able to handle conventional violations of international law such as that which occurred when Iraq invaded Kuwait in 1990 than the less-dramatic violations of human rights that take place on a day-to-day basis in today’s world and around which a genuine international consensus to act rarely solidifies.

Notes *

An earlier version of this chapter was presented at the BISA/ISA Joint Special Workshop, ‘Can Institutions Have Morals?’, held at the University of Cambridge, 17–19 November 2000. I am grateful to the participants – and especially to the organiser, Toni Erskine – for their comments. Another version was published in Ethics & International Affairs, XV 2 (2001) 87–98.

1 The ability to act as a moral agent presupposes the ability to act as an agent in the first place. Since the latter is in question with respect to international society, a great deal of what follows is oriented towards general questions of agency rather than moral agency as such, although the ultimate goal is to be able to address normative issues. 2 See N. Chomsky, World Orders, Old and New (London: Pluto Press, 1994); The New Military Humanism (London: Pluto Press, 1999); and J. Pilger, ‘Under the Influence: The Real Reason for the United Nations’ Role in East Timor is to Retain Indonesian Control’, Guardian (21 September 1999), (www.guardian.co.uk/Print/0,3858,3905182,00.html). 3 See for example, Aristotle, The Nichomachean Ethics, Bk VII 1145b1 ff, trans. by T. Irwin, (Indianapolis, IN: Hackett, 1999). 4 For the founders of the ES, see H. Butterfield and M. Wight, Diplomatic Investigations (London: George Allen and Unwin, 1966); H. Bull, The Anarchical Society (London: Macmillan, 1977); and M. Wight, International Theory: The Three Traditions, (eds), G. Wight and B. Porter (Leicester: Leicester University Press, 1991). The new ES project, led by Barry Buzan, is best approached via its website http://www.ukc.ac.uk/politics/englishschool. For the ‘constructivist’ position see, for example, A. Wendt, Social Theory of International Politics (Cambridge: Cambridge University Press, 1999). 5 See N. Luhmann, Die Gesellschaft der Gesellschaft (2 Vols) (Frankfurt am Main: Suhrkamp, 1997) and J. Meyer et al., ‘World Society and the Nation State’,

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6

7

8

9 10

11 12 13

14 15 16 17

18

19

American Sociological Review, LXII (1997) 171–90, and, for a comparison between the different notions of society held by these writers and the ES, see C. Brown, ‘World Society and the English School: An “International Society” Perspective on World Society’, European Journal of International Relations, VII (2001) 423–41. The notion of an international society as opposed to an international system is explored in C. Brown, ‘International Theory and International Society: The Viability of the Middle Way’, Review of International Studies, XXI (1995) 183–96. He has since been acquitted. For the benefit of non-British readers, Southampton Football (i.e. soccer) Club is a member of the ‘Premiership’ the top English league; like many UK clubs it is a publicly quoted limited company in which many individuals hold shares. It is run by a Board of Directors, the Chair of which is the largest shareholder in the company and exercises effective control; the manager (‘coach’ in American vernacular) is in charge of strategy on the field. It is only by remaining in the Premiership that large-scale revenues from television can be guaranteed. It should be said that very few football clubs are profitable by comparison with other investment opportunities, and most of their shareholders invest primarily for love of the game – Board Chairmen in particular, can expect to lose money, and are usually ardent fans with strong tribal loyalty to the team. This distinction is set out in T. Nardin, Law, Morality and the Relations of Nations (Princeton, NJ: Princeton University Press, 1983). See N. J. Wheeler, ‘Pluralist and Solidarist Conceptions of International Society: Bull and Vincent on Humanitarian Intervention’, Millennium: Journal of International Studies, XXI (1992) 463–87. S. Krasner, Sovereignty: Organised Hypocrisy (Princeton: Princeton University Press, 1999). J. Welsh, Edmund Burke and International Relations (London: Macmillan, 1995). C. D. Kaufmann and R. A. Pape, ‘Explaining Costly International Moral Action: Britain’s Sixty Year Campaign against the Slave Trade’, International Organization, LIII (1999) 631–68. C. Holbraad, The Concert of Europe: A Study in German and British International Theory 1815–1914 (London: Longman, 1970). H. Kissinger, A World Restored (New York: Houghton, Mifflin, 1957). The best discussion of this issue is N. J. Wheeler, Saving Strangers (Oxford: Oxford University Press, 2000). J. Habermas, ‘Bestialität und Humanität: Ein Krieg an der Grenze zwischen Recht und Moral’, Die Zeit (29 April 1999) (http://www.zeit.de/1999/ 18/199918_krieg.html ). For Chomsky’s reaction see note 2 above; a representative realist position might be C. Gray, ‘No good deed shall go unpunished’ in K. Booth (ed.), The Kosovo Tragedy: The Human Rights Dimension (London: Frank Cass, 2001), pp. 302–6 (also published as a Special Issue of the International Journal of Human Rights, IV 3&4 (2000)). The present author’s essay ‘A qualified defence of the use of force for humanitarian reasons’, which expands the argument on Kosovo presented in this chapter, is in the same volume. M. Ignatieff, Virtual War (New York: Metropolitan Books, 2000).

Part II Obstacles and Alternative Questions

4 Collective Moral Agency and the Political Process Frances V. Harbour

The issue of whether nation-states, international governmental organizations (IGOs), nongovernmental organizations (NGOs), and transnational and multinational corporations can be considered moral agents is a complicated one. One of the central problems in accepting these states, IGOs, NGOs, and international businesses as moral agents is their political and internally pluralistic character. The more complex the organization, the more likely it is to be made up of coalitions of individuals, often organized into formal component institutions or bureaucratic agencies. Complex structure and function encourage individuals and component institutions to develop differing views of the world and the broader organization’s place in it. Participants in a political process are often required to accept significant compromises in their own preferences in order to be able to take any collective action at all. With complexity and compromise at the core of international institutions, how can we say that they bear moral responsibilities? How can there be collective moral agency when not everyone participates in, or even agrees with, all the actions and decisions of the organization? In this chapter I ask whether multiple viewpoints and dependence on compromise mean that these bureaucratic international institutions cannot be moral agents. To answer this question I will use a model of moral agency based on individual moral psychology, on the one hand, and the ethics of responsibility, on the other. I will defend the conclusion that political decision-making and the compromises this structure so often requires for collective action raise problems for, but still leave open the possibility of, collective moral agency. Webster’s Ninth New Collegiate Dictionary defines compromise as ‘a settlement of differences by arbitration or by consent reached by mutual concessions’.1 This straightforward description suggests that at least 69

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under some circumstances there can be morally neutral compromises and perhaps something better. And, indeed compromise is very closely associated with successfully negotiating the shoals of social life. Edmund Burke went so far as to claim, ‘All government, indeed every human benefit and enjoyment, every virtue, and every prudent act, is founded on compromise and barter’.2 But the second meaning offered by the dictionary explicitly brings out the ethical unease we feel with compromise. In this second definition, compromise is ‘a concession to something derogatory or prejudicial’.3 The second definition brings us to the question of whether the concept of compromise is so ethically compromised, as it were, that the organizations who live by it must be condemned in moral terms from the start. If so, complex international institutions might be decision-making agents responsible for the moral implications of their actions, but they could not be conceived as moral agents in a normative sense. There is another sense of the term ‘moral’ that is also relevant to the evaluation of international actors. We might ask whether complex organizations and their decisions belong to the metaethical realm of morality at all. This is an issue that has long been of interest to scholars of international relations. It raises concerns about how right and wrong are constituted, whether the international system provides a community that can ground a moral system, the nature of the public/ private distinction, even the nature of the actors in the international system. I acknowledge that the metaethics are not as simple as I am taking them to be here, but doing full justice to this issue is beyond the scope of this chapter. I would argue, however, that there is a significant overlap between the subject matter of the world of politics and of morality, and, as Mervyn Frost argues, there is nothing logically incoherent about placing the same group actors within the frame of both social practices.4 In stipulating this I endorse a classic definition of politics as ‘the authoritative allocation of values for a society’.5 Organizations such as nation states, their governments, IGOs, NGOs, and multinational corporations (MNCs) are all participants in the political process under this relatively forgiving definition. With nation-states and their governments such a conclusion is axiomatic. For other international institutions, an increasingly active role in shaping values and affecting the distribution of goods and services around the globe makes such a conclusion plausible. The effective weight of non-state actors is now felt in substantive areas that range from the eradication of smallpox, to banning anti-personnel landmines, to international labour questions, to world trade.

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The definition of politics as the authoritative allocation of values dovetails with a vision of morality as potentially universalizable social practices relevant to conceptions of right and wrong, and to human flourishing. As William Frankena puts it, morality thus understood is a more or less self-conscious ‘action-guide, some kind of standard for conduct, character formation, and life, something by which, together with the facts or what we believe or take to be the facts about ourselves, our situation, and the world, we do or may determine how we should act or shape ourselves’.6 Authority, norms, and relevance to human flourishing thus clearly link the political with the moral realm. Moreover, shared views of right and wrong often play an important part in motivating those who construct collective international actors – and for individuals who occupy the various positions within them. What is much less clear is whether the pluralistic structures and decision-making process that make compromise so central to complex organizations mean that they cannot be considered decision-making agents of any kind. Without agency we cannot hold institutions morally responsible for the results of their policies.

Organizational structure, compromise, and moral agency In one sense, to speak of any organization as a unified actor is to engage in metaphor. When we say an organization ‘acts’ – to bomb Chechnya, to send a delegation to Iraq, to hold a conference on AIDS prevention, to adopt a code of ethics, and so on – it is a shorthand way to indicate that human beings associated with the organization are behaving in a concerted fashion. The pattern of relationships, roles, legitimacy, and authority involved in participating in the organization sets the individuals associated with it in motion. It thus makes sense to consider even a complex organization causally responsible for coordinated actions of members because the people involved would not have acted as they did, had it not been for their association with each other and their place in the organization.7 But moral agency requires something more. Among individuals, moral agents must be both capable of making distinctions between commitments and one course of action and another, and morally responsible for the effects of their decisions.8 For group actors, a degree of internal unity and self-command is thus necessary for holding a collectivity to be ‘an’ actor, much less a moral agent. For organizations, especially complex international institutions, the requirements of moral agency are more difficult to meet than for individual, adult humans. In particular, their pluralistic

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structure raises the issue of whether they can be considered unified enough in their decision-making capabilities to be able to deliberately and collectively commit themselves to one course of action rather than another. When it comes to decision-making and organizations, the question is, to paraphrase the old joke about Burbank, California: is there enough ‘there’ there? Moreover, since organizations do not make decisions in the way individuals do, can they be held morally responsible for the effects of ‘their’ actions? Other chapters in this book explore the question of collective moral agency from other angles. My own perspective is that the metaphor of decision-making by organizations, even complex organizations, has enough features of rational decision-making by responsible individuals, that we can treat complex international actors as moral agents, at least for the purposes of considering moral culpability. First, governments, IGOs, NGOs, and MNCs have at least a minimal degree of agency, in the sense of ability to deliberately pick a course of action or policy, based on some criteria. Although not all actions by employees of an institution are the result of decisions sanctioned, much less directed from the top, an organization’s leadership can, and often does, collectively pick one course in preference to another for reasons that include a sense of what is important to the organization. This is sometimes described as ‘minimal rationality’.9 Not all acts of either organizations or individuals are preceded by careful reasoning, but the capacity exists in both cases. It is important to stress, however, that this is a very minimal standard of rationality indeed, and that it is not alone sufficient for moral responsibility. Nevertheless, if we do use this minimal ‘big tent’ definition of coherent decision-making capacity, then our complex international actors meet the standard. Governments, MNCs, IGOs, and NGOs all have formal decision-making structures. Leaders often attempt to implement organizational preferences and usually succeed in moving their members in general conformity with the decisions made. Like other rational decision-making agents they can make decisions with ‘a view to consequences’,10 sometimes including moral consequences.11 In spite of their differences, all of these institutions have a headquarters or central decision unit and enough internal authority to make most of the activities of the broader organization a recognizable result of organizational policy. The complex international institutions are thus at least minimally both ‘actors’ and rational, and, in this sense, are decisionmaking agents. But hiding behind this tidy general conclusion is a messy

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political process that often includes differences of opinion, conflict, negotiation, and compromise, explicit or implicit.

Political process Policy making in large, complex organizations is a balance of centripetal and centrifugal forces: pressures that push the individuals and components of organizations together and forces that pull them apart. One of the most important factors pushing the organization together is the force of organizational culture, including shared values. Organizational culture plays a role in motivating individuals to join and to stay in an organization. Organizations socialize their members into their values. And individuals whose values are compatible with the organization’s have an easier time prospering within the ranks. Thus, no one who did not believe military force is at least sometimes an acceptable response in international relations would be happy in the Marine Corps. Those who work for multinational tobacco companies have many values that are different from volunteers and employees of Habitat for Humanity. The policy making process, too, has a tendency to push decisions into cascading channels where later choices are constrained by earlier decisions. So, too, leaders set general policies, but only in light of information and recommendations filtered upwards through the perspectives of relevant component organizations and lower-level officials. Policy that is designed in a general form at the top is further shaped in practice as it is implemented by component organizations and by front-line individuals. Those who carry out policy must interpret it first, and may also avoid, delay, or sometimes even sabotage a policy they do not like. Part of the reason we seek to assign collective moral agency to international institutions is that individual moral responsibility in a complex organization is often extremely difficult to untangle. The complex flow of information, guidance, and consequences gives policy a very collective stamp. Who, for example, actually ‘makes’ Canadian defence policy? Why was the decision to single out Jodie Williams for a Nobel Prize along with the International Campaign to Ban Land Mines so controversial? Who is responsible for labour conditions in factories that subcontract for transnational corporations? As Dennis F. Thomson put it, ‘Because many different officials contribute in different ways to political decisions and outcomes it is difficult, even in principle, to decide who is morally responsible for policy outcomes’.12 Although, as Thomson argues, we can still tease out individual responsibility for aspects of

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policies, this problem of ‘many hands’ is a powerful argument for not losing sight of collective causation and responsibility. The force of the collective is not the only reality of organizational decision-making. Distinct centres of power also affect decision-making in complex organizations. Complex organizations are made up of smaller subgroups, often organized into formal component institutions of their own, as in political parties or bureaucratic agencies. Each of these subgroups will have its own decision-making process and jurisdiction over part of the organization’s work. National governments are made up of a web of ministries and bureaus populated by party representatives, career civil servants and, in many countries, hybrids of both. In IGOs, large NGOs, and MNCs, there may be national affiliates and/or representative missions. So, too, complex organizations often have formal or informal divisions according to function, such as the office of the chief executive, a legislature or other rule-making body, a marketing division, a secretariat, and a board of directors or cabinet, to name just a few of the possibilities. Harold Gortner points out that those who work in large public (and, I would argue, large private) organizations thus ‘work in an organizational setting which always has three arenas: interorganizational relationships, intra-organizational relationships, and organization-to-individual relationships’.13 Differing responsibilities among the component groups often mean differing views of how the organization as a whole should relate to the world, or, at least, differences in priorities. Think, for example, of tensions that have surfaced publicly in recent years within the United Nations Security Council (UNSC), the International Red Cross, civil– military relations in Colombia, and the perspectives of home offices and branches in certain MNCs. Does this complex structure destroy the larger organization’s capacity to be a moral agent? I would argue that it does not have to, and that compromise is a key element of what keeps the behaviour and collective decision-making of the larger organizations coherent enough for them to be considered agents.

Compromise In the face of disagreements about policy, there are relatively few options that can bring about group action. Parties or subgroups may coerce, trick, use force, or attempt to persuade others to go along. Or there can be a compromise. Coercion, force, and trickery are all time-honoured political expedients, but they carry with them clear ethical problems and even prudential costs in organizational morale and

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the possibility of using more cooperative methods of dispute resolution on other issues. Persuasion and conflict resolution are much more desirable on all counts, but given constraints of time, information, and organizational culture, they are often impossible to accomplish. Compromise is a surer way to get at least part of what groups or individuals want to accomplish into the behavioural mix of the organization as a whole. Unless they are willing to do so, the institution frequently cannot take any coherent collective action. Negotiating a compromise is thus often the most effective means for a complex political organization to get anything accomplished at all. Recall that, according to Webster’s Dictionary, the first meaning of ‘compromise’ has two variants: ‘a settlement of differences by arbitration or by consent reached by mutual concessions.’ Surprisingly, these are more alike than one might think at first glance. In arbitration, a third party accepted as legitimate by the participants determines the resolution of a conflict. In very hierarchical organizations, such as authoritarian governments or business empires controlled tightly from the top, arbitration takes the form of authoritative decisions by leaders in the face of lower-level disagreement. In most large institutions, however, semi-independent power bases of component groups and the ability to subtly sabotage policy (or even to refuse to comply), mean that chief executives must pay some attention to the will of those who implement official decisions. That is, even authoritative arbitration requires an element of mutual accommodation. During the Canadian conscription crisis of 1944, for example, Prime Minister W. L. Mackenzie King had to try to find a policy that both English Canadians and French Canadians in his cabinet could accept. If he could not do so, the disgruntled faction might bring down his government. Negotiation of the Chemical Weapons Convention of 1993 was held up for decades by the inability of US political leaders to get their armed forces to accept a limit on nonlethal chemical weapons. Nike changed its official labour policies in the late 1990s, but found that getting compliance with the new rules in its factories was more difficult than making the decision to do so. It is sometimes hard to get component groups inside an institution to accept a policy, but it is nevertheless easier than getting agreement in the world at large. One of the advantages of trying to achieve mutual accommodation inside organizations is that there already are likely to be common values and goals, as compared to individuals or groups outside the umbrella of the institution. The more tightly integrated the corporate body, the easier it is to work out compromise, at least on some issues. It is thus easier for the US Joint Chiefs of Staff to reach an

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agreement with one another on budget policy than it is for them to accept security priorities of the State Department. But both would find it easier to come to an agreement with each other on policy towards Afghanistan than they would with their counterparts in Russia. Conflict resolution research seems to show that compromise by mutual accommodation requires trust or agreement that the other side has at least some moral legitimacy on its side.14 Otherwise, there is little incentive to give up on implementing the totality of one’s own values just to get an agreement. Of the complex international actors that we are considering, mutual accommodation compromises are most difficult to achieve in IGOs where delegates of states are all members of the same loosely knit institution, but may not share many common goals or values. Even when decisions are achieved by majority vote, as in many UN affiliates, majority will is not usually a spontaneous expression of preferences but must usually be laboriously constructed by compromise. Decision rules such as majority voting, in essence, keep a degree of internal coherence by forcing logrolling and other compromise techniques to construct majorities. John Hallowell writes that compromise is an example of the old principle of ‘might makes right’.15 This is only true, however, when coercion plays a big role in forcing compromise and those on the losing side have so little trust in the winning side that they believe they cannot live with the policy that is likely to result. Organizations that do not meet this minimum level of willing cooperation and trust may not achieve moral agency. However, the process of compromise, even with its likely residue of leftover, unmet preferences, does not automatically mean that a group cannot be considered to be a collective moral agent. This is because decisions made in reaction to a complex environment seldom satisfy all of even a single rational person’s values or preferences. For example, when an individual considers taking economic advantage of insider inform ation, the decision involves a complicated mixture of ethical and prudential values, whatever the outcome of the decision. Even in simpler cases, such as picking out a new car, we are often left with some regrets about the more reliable but expensive vehicle left on the dealer’s lot. Picking a course of action thus often requires putting some of our values ahead of others, whether the decision maker is an individual or a collective. As Joseph Carens points out, even for individuals, ‘action often requires compromise … [because] a given individual may have many goals, some of which conflict with others’.16 In the case of full-fledged ethical dilemmas where the only choices are between two

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incompatible ethical imperatives, by definition, there is no way to fully satisfy all of a person’s ethical values. In such cases compromise is a product of moral agency as well as the process of deciding. Thus, as for individuals, compromise is not a violation of agency for an organization; it is how the organization is able to make its collective decisions and act in the world. Compromises may have positive or negative moral implications, but the group’s moral agency is not the question they raise.

Collective moral agency and organizational politics To be a moral agent, an actor must not only be a relatively coherent decision-maker, but also be subject to moral responsibilities. If one accepts that moral principles are universally binding, the argument for moral responsibility of groups at this point is a straightforward one: ‘[I]nsofar as governments of nation-states, international bodies, or groups of individuals can be considered to be moral agents, moral constraints that apply on the level of personal moral relationships may be presumed to apply to them also’.17 But even if one does not accept universal moral obligations, many of the criteria we apply to make such judgments about individuals also apply to complex international actors of the types we are considering. We know states, IGOs, NGOs, and international businesses can make moral distinctions because they publicly justify their behaviour in moral terms. They can and sometimes do make adjustments in their behaviour in response to moral criticism,18 and may even have something approaching a ‘conscience’, at least by analogy.19 Among international institutions, NGOs and IGOs are especially likely to make moral claims. Doctors Without Borders, the Kosovo Liberation Army, and the World Bank all justify their existence and their actions in terms of justice and human rights. Friends of the United Nations defend it in terms of world collaboration and the hope for peace. When Greenpeace publicly confronts ships engaged in whaling in the Pacific, it is an attempt to engender moral shame in the relevant states. Even international businesses take part in this dialogue. When Nike adopted new labour standards in Latin America, it was in response to moral criticism. While material self-interest often plays a part in motivating international institutions to take part in the moral discourse, and to respond to international pressures and calls to conscience, the same may be said for individual moral agents. Both organizations and individuals seem to fit the requirements.

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Overlapping patterns of moral agency It is not enough, however, to simply say that institutions are morally responsible for the policies they direct, and the actions of their agents. Does collective moral agency mean denying the moral responsibility of individuals who carry out policy? The problem of ‘many hands’ is sometimes advanced as an argument for not holding individuals morally accountable for the actions of organizations. This argument is closely related to W. F. Walsh’s claim that a representative of an institution cannot be held morally responsible for his or her actions because an official ‘takes over certain standing commitments and certain standing long term aims, over some of which he may well be personally unenthusiastic … and this may on occasion lead him to engage in actions which fall into the class Aristotle described as “nonvoluntary” ’.20 As I have argued above, I believe Walsh underestimates the amount of leeway ultimately available at intervening points in the decision structure. Nevertheless, the point is well taken that institutional roles lead individuals to take actions they would not have, absent those roles, the international actor’s goals,21 and the process of compromise. The existence of these pressures lends weight to an argument for organizational moral agency and for organizations bearing significant responsibility for the collective actions that result. Participants and members of organizations still remain human beings capable of rationality. Individuals retain ownership of their own actions and decisions, and thus individual moral responsibility overlaps with the collective agency of the organization as a whole. As moral agents in their own right, people are responsible for the commitments they take on, the implications of being part of the larger organization, their own willingness to carry out activities, and the directions they give to others.22 The same point is applicable to component groups such as armed services, shareholders, and secretariats. Smaller groups are moral agents in their own right for the same reasons I have laid out for the collective moral agency of umbrella organizations. As such, they are responsible for what they themselves decide and do. As collective actors they are also answerable for the actions their own members undertake as a result of collective policy. What we see is an overlapping pattern, with each agent, collective or individual, responsible for itself as well as events it sets in train. Thus, Adolf Hitler, the Nazi party, and the state of Germany are each to blame for the Holocaust in World War II. Human beings make and animate collective policy. Collectivities, unlike individual moral agents, cannot act for themselves. Individuals contribute to the cascade that constitutes group behaviour, and they

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have choices to make along the way. As Paul Cornish and I argue in Chapter 7 of this volume, good leaders know that it is counterproductive to try to micro-manage every action of every person on the ground. The more complex the institution, the more true this becomes. Not only would directions from prime ministers or chief executive officers become incredibly complex, but people and component organizations lower down in the chain are often in a better position than those higher to know how best to actually implement the underlying purpose of policy, for good or ill. Land mine groups in Canada know better than International Campaign to Ban Land Mines planners in the United States how to influence Canadian national leaders. Contractors for multinational clothing companies in India know enough about local customs to design a school/work programme for young employees that will meet local regulations. (They also know which regulations can be successfully evaded.) The army knows how to carry out a military operation better than the president. Responsibility for some aspects of a collective policy thus originates at mid-level and even in the field. The additional opportunity to contribute to a collective action is part of what makes institutional policy a collective product. At the same time, the multiple nodes of decision-making created in this way also leave room for the moral agency of individuals and component groups at all levels of the process. Collective and individual moral agency also overlap in the process of compromise. As David Luban points out, seeing ourselves as moral actors means that we want to see our moral principles applied in the real world. At the same time, however, ‘since all-or-nothing politics is usually doomed to defeat … refusal to compromise one’s principles means in practice abandoning entirely the hope of seeing them realized’.23 This paradox requires individuals and groups to choose among moral values, and to allow some, but not all of the values, to be integrated into the collective portfolio that underpins a decision. The process of collectively negotiating a compromise is thus simultaneously the product of decision making by the institution as a whole and by individuals and component institutions. We can and should hold any moral agent accountable for the values it accepts, but crafting such a compromise neither robs subordinate decision-makers of their moral agency, nor, in and of itself, is it an immoral act. Ethics of compromise We have seen many of the positive aspects of compromise in the preceding sections. Not least, compromise enables the institutional actors in the international system to maintain enough coherence to

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make decisions and act in ways for which we can hold them morally responsible. Nevertheless, compromise remains a morally disquieting concept. George Santayana is reputed to have said, ‘Compromise is odious to passionate natures because it seems a surrender, and to intellectual natures because it seems a confusion’.24 Although all compromises require the willingness to negotiate a package of collective values, and hence to give way on some of our cherished projects and values, not all compromise requires embracing wrongful motives or immoral actions. This is especially true in the world of international institutions where many of the choices before the actors are ethically permissible, although far from perfect. Some have argued that situations in which decision-makers must decide between two morally unacceptable choices are so basic to the public sphere in general, and especially to the international arena, that we simply have to learn to live simultaneously with the need to maintain ethical values and the moral guilt that follows from breaking with them.25 And it is true, in extreme cases, that available choices for policy makers do require transgressing moral boundaries. Winston Churchill, for example, had to choose between authorizing the bombing of German cities in 1940 – even at the cost of horrendous civilian casualties – and accepting that World War II was lost to the Nazi war machine. The moral costs of choosing between two evils result in what is sometimes called the dilemma of dirty hands.26 Acting in ‘dirty hands’ situations requires violating moral principles on one horn of the dilemma or the other. The dilemma of dirty hands is not nearly as common as those who focus their analysis on it often imply, however. Their perspective takes the worst situations international actors can face, and asserts that these are typical. It is certainly true that governments, IGOs, NGOs, and MNCs have to deal with moral dilemmas and ‘dirty hands’ problems more often than they would wish. But, in fact, the vast majority of policies and decisions do not involve such stark alternatives. Policy-making may well require the process of compromise, including some compromises that involve moral principles, but not all compromises require morally tragic choices. One of the more helpful developments of recent applied ethics is the reminder that ‘forbidden’ and ‘required’ are not the only morally relevant categories. There are also ‘good-to-be-omitted-but-not-forbidden’, and ‘good-to-be-done-but-not-required’ activities,27 as well as many morally neutral actions. An actor can undertake behaviour of any of these types without moral wrongdoing. There are thus many compromises that do not violate ethical rules, rights, or principles. The World

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Bank might, for example, have proposals for a micro-credit programme that would make small direct loans to very poor female entrepreneurs in rural Bangladesh and to water purification plants in India. The first programme encourages autonomy and prosperity (among other values), and the second health. There are limited funds. Is a compromise that provides funds for some loans and some water purification doing something wrong? Or even choosing between them? Of course not. Both loans and building water plants fall into the purview of ‘good-to-bedone-but-not-required’ activities. Compromise between them may involve differences of opinion, but neither option is morally wrong. It is also worth remembering that one of the functions of debate is to air differing moral convictions, competing perspectives on legitimate but not obligatory claims for recognition of relevant interests, and alternate descriptions of the ‘comprehensive view’ of the question.28 A willingness to listen is especially desirable in IGOs, such as the United Nations, where the chief alternative to compromising may be the use of force. Furthermore, even if one does not take a social-constructivist position on the role of interpretation and selective attention in understanding the world, it is clear that human beings are fallible. That fallibility is magnified in the presence of the inevitable limitations of information and time pressures of political life. Thus, in a debate over policy, reasonable people may well disagree whether this (complex) issue actually involves or violates that duty, right, or principle. Appropriate humility in the face of uncertainty should make us wary of branding the other parties in a complicated controversy as absolutely wrong.

Conclusion I have argued above that we do not need homogeneity for collective moral agency, and that the often-scorned art of political compromise is an important part of what makes collective agency possible in governments, IGOs, NGOs, and international businesses. So, too, I contended that the art of compromise is critical to the process by which the moral values of component organizations and individual employees of an organization can be translated into action in the real world. There are limits to morally acceptable compromise, but it is not its status as a compromise that makes a policy right or wrong. As Henry David Aiken put it, ‘Compromise is as compromise does. Some compromises are desirable; some are necessary; others are dishonorable.’29 The need for compromise presses in on international organizations. These institutions must operate in a political arena that frequently

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hands them problems that do not have simple solutions. Moreover, as Joseph Carens points out, ‘One reason why compromise is so common in politics is that in politics we are required to act … in the face of uncertainty before we are confident that we have reached the truth.’30 Because of scarcity of resources, controversial connections between ends and means, and the importance of the stakes, politics is a realm of disagreement. The international forum in particular is a complicated and often dangerous environment where lack of confidence in other actors’ motives may further complicate interactions. International actors also face a world in which they do not control all of the resources they need to pursue their goals successfully. In many situations compromise, internal and external, is the only way short of force or coercion to promote at least part of the organizational mission. We live in a time when confrontation seems to guide international relationships from the peace process in the Middle East, to international labour relations around the world, to the membership of United Nations bodies. Political realists might tell us that this nose-to-nose confrontation is directly related to neo-idealist liberal politics: to the reinvigoration of moral debate as an acceptable political category in the contemporary world. Realists say that idealism leads to extremism because one cannot compromise moral principles. As I have argued above, this conclusion represents a misunderstanding of the structure of political compromise. It is also a misunderstanding of the nature of liberalism. Liberal idealism does tell individuals and groups to fight for the right. Liberalism is also, however, an account of how people who disagree with one another can live together and find common purpose, including moral purpose. Political compromise is an especially important aspect of the process of developing this common ground within large pluralistic international institutions.

Notes 1 Webster’s Ninth New Collegiate Dictionary (Springfield, MA: Merriam-Webster, 1984), p. 271. See also, M. P. Golding, ‘The Nature of Compromise: A Preliminary Inquiry’, in J. R. Pennock and J. W. Chapman (eds), Compromise in Ethics, Law, and Politics, Nomos 21 (New York: New York University Press, 1979), pp. 3–26 (p. 3). 2 E. Burke, ‘On Conciliation with the Colonies’, in Speeches and Letters on American Affairs (ed.), Hugh Law (London: J. M. Dent and Sons, 1908), pp. 76–141 (pp. 130–1). 3 Webster’s, p. 271. 4 M. Frost, Chapter 5.

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9 10 11

12

13 14 15 16 17 18 19 20 21 22 23 24 25 26

27 28

29 30

D. Easton, The Political System: An Inquiry into the State of Political Science (New York: Knopf, 1953), p. 129. W. K. Frankena, Thinking about Morality (Ann Arbor: The University of Michigan Press, 1980), p. 19. A. Wolfers, Discord and Collaboration (Baltimore: Johns Hopkins Press, 1962), pp. 8–9. R. T. DeGeorge, ‘Agency Theory and the Ethics of Agency’, in N. E. Bowie and R. E. Freeman (eds), Ethics and Agency Theory: An Introduction (New York: Oxford University Press, 1992), pp. 59–72 (p. 64). Ibid. A. Flores and D. G. Johnson, ‘Collective Responsibility and Professional Roles’, Ethics, XCIII (1983) 537–45 (p. 538). P. A. French, ‘The Principle of Responsive Adjustment in Corporate Moral Responsibility: The Crash on Mount Erebus’, Journal of Business Ethics, III (1984) 101–11. D. F. Thompson, ‘Moral Responsibility of Public Officials: The Problem of Many Hands’, American Political Science Review, LXXIV (1980) 905–16 (p. 905). H. F. Gortner, Ethics for Public Managers (New York: Praeger, 1991), p. 12. Golding, p. 17. J. Hallowell, ‘Compromise as a Political Ideal’, Ethics, LIV (1944) 157–73 (p. 173). J. Carens, ‘Compromise and Politics’, in Pennock and Chapman (eds), pp. 123–42 (p. 125). G. Elfstrom, ‘Dilemmas of Intervention’, Ethics, XCIII (1983) 709–25 (p. 725). French, pp. 101–11. K. E. Goodpaster and J. B. Mathews, Jr, ‘Can a Corporation Have a Conscience?’, Harvard Business Review, LX 1 (1982) 132–41. W. H. Walsh, ‘Pride, Shame, and Responsibility’, Philosophical Quarterly, XX (1970) 1–20. Wolfers, pp. 8–9. See, for example, Elfstrom, p. 713, and Flores and Johnson, p. 543. D. Luban, ‘Bargaining and Compromise: Recent Work on Negotiation and Informal Justice’, Philosophy and Public Affairs, XIV (1985) 397–416 (p. 415). Quoted in Golding, p. 5. Carens, p. 139. S. A. Garrett, ‘Political Leadership and “Dirty Hands”: Winston Churchill and the City Bombing of Germany’, in C. J. Nolan (ed.), Ethics and Statecraft: The Moral Dimension of International Affairs (Westport, CT: Praeger, 1995), pp. 75–91 (pp. 75–6). M. S. Singer, Ethics and Justice in Organizations: A Normative-Empirical Dialogue (Aldershot: Avebury, 1997), p. 74. A. Kuflik, ‘Morality and Compromise’, in J.R. Pennock and J.W. Chapman (eds), Compromise in Law, Ethics and Politics, Nomos XXI (New York: New York University Press, 1979), pp. 38–65 (pp. 51–52). H. D. Aiken, ‘Ideology: A Debate’, Commentary, XXXVIII (Oct. 1964), p. 76. Carens, pp. 124–5.

5 Constitutive Theory and Moral Accountability: Individuals, Institutions, and Dispersed Practices Mervyn Frost

In this chapter I shall argue that the most interesting and important ethical judgements are not those upon the conduct of either individuals or institutions, but are on the ethical forms of the practices within which both individuals and multi-person actors are constituted as actors of a certain kind. The title of this book is, Can Institutions Have Responsibilities? This phrasing could well be read as implying that although it is more or less self-evident that individuals can respond to ethical guidelines, take moral decisions, and be held morally accountable for their actions, there is something problematic about supposing that the same can be said of those multi-person actors frequently referred to as institutions. The direction of the comparison is from the individual, as the clear case, to the institution, as being the doubtful category. In this chapter I shall argue that this way of posing the question does not take us to the heart of what should be the major concern for those interested in ethics in international relations. The problem arises from the starting point that takes the individual as moral actor to be a relatively unproblematic idea. In what follows I shall make use of constitutive theory to demonstrate just how and why this is so.1 I aim to show how this theory provides rich insights into the relationships that hold between moral agents (whether individuals or institutions) and social practices. I will suggest that it is only by examining the social practices within which such actors are constituted that it is possible to discern what their responsibilities might be. After having done this, I will turn to the nature of these practices and explore why certain ‘dispersed practices’ are frequently deemed vulnerable to blame and praise even while they are not themselves agents. 84

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Two ways of understanding moral agency: chains versus frames Consider the question: Is the United Nations a moral agent? One way of presenting an answer is to articulate a chain of transactions, which confer moral standing on it. The links in the chain could be spelled out as follows: the institution created by the UN Charter is a moral agent because it arose from a contract among the representatives of member states who conferred on it both a moral and legal standing. These politicians in turn were making use of the moral authority conferred upon them by the states in which they were constituted as Heads of State, Foreign Ministers, and so on. The sets of constitutional rules in the states within which they were constituted as agents of a certain kind (President, Prime Minister, Foreign Secretary, and so on), in turn, have moral authority because it was conferred upon them by the individual agents who are the citizens of those states. How we should continue the chain of authority-conferring acts at this point becomes problematic. On one view, we could say that these individual men and women have moral authority because it was conferred upon them by God. But those without this religious conviction might put forward an alternative view. They might simply stop at the penultimate link, asserting that the first moral authority is the individual person. The template that underlies the ‘chain of moral authority’ picture that I have sketched here parallels the ‘chain of law’ arguments to be found in the works of legal positivists such as Hans Kelsen. The legality of local law derives from its having been authorized by higher-level legal authority, which in turn is authorized by a higher-level and so on up the chain until the final link, the grundnorm, which is produced by a sovereign who is not subject to law.2 If we think of the moral agency of institutions in terms of ‘chain of authority’ type pictures, then clearly the only kind of moral authority which institutions such as the UN can have is derived authority. The link to prior moral authorities will always be theorized through reference to social contracts. Thus, on this view, whatever moral authority a state has can only be understood in terms which show it to have been derived from a chain of contracts which leads back finally to individual moral agents – or a God. Once the origin of moral authority is understood in this way, it becomes clear that the task for ethical theorists is to determine with regard to some specific institution (the state or the UN, for example), just how much moral authority the contracting individuals may be said to have transferred to the institution in question. The debates between Hobbesians and Lockeans may be understood to be about this.

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The problem with this approach may be seen by focusing on the point where the chain ends – by focussing on the final actor (God or man) who is simply taken to have moral authority. Questions to be asked here are the following: what does this authority command? What, if any, are the limits on its view of moral action? Where the final actor is taken to be a God, then answering these questions becomes a problem for theologians. Notoriously, theologians of all religions have found it difficult to answer these questions in ways which convince all people. Disputes among theologians about what God commands continue to the present. If the final link is taken to be the sovereign individual person, similar problems arise. Individuals do not agree on what is to count as morally appropriate conduct. One way of finding answers to these questions might be to suggest that ‘reason’ will reveal all. But, of course, people disagree as to what ‘the dictates of right reason’ might be. Here it might seem as if a deadlock has been reached. One person’s account of what reason dictates with regard to what is to count as ‘moral’ comes to confront a rival account. There seems to be no neutral arbitrator to settle this matter. At this point let me introduce constitutive theory as an alternative way of theorizing the moral agency of both individuals and of institutions.3 This does not start with some notion of a sovereign moral agent from whom all authority derives. Instead it insists that it is only possible to understand actors and their actions within the context of specified social frameworks which I shall refer to as practices. These practices have embedded in them ethical codes.

The constitution of individuals as actors within social practices The central insight of constitutive theory is that to be an actor is to be constituted as such within a specific social practice. Thus, for example, for me to be that kind of actor which we call a speaker of English is to be constituted as such within the practice of speaking English. Until such time as I have learned how to use the nouns, verbs, adjectives, adverbs, and particles of the English language (or, to put it another way, until such time as I have learned to follow the rules governing the use of the words in question) I shall not be constituted as an English speaker in the practice of English speakers. The notion of ‘learning to follow the rules’ governing the use of certain words is not to be understood as requiring of me that I learn how to follow explicitly stated rules (spelled out in some other language), but is better understood as requiring that I learn

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how to use the words in question and how to recognize what would count as having made a mistake in their use. This insight that to be an actor of a certain kind is to be constituted as such within a social practice, and that this depends on having learned the ‘rules of the game’ within the relevant practice(s), is derived from the work in the philosophy of language that was pioneered by Ludwig Wittgenstein in his later phase.4 His insights have recently been extended to produce a more comprehensive understanding of the relationship between actions and practices in general by Theodore Schatzki.5 The key insight then of constitutive theory is that to be an actor (soccer player, father, banker, citizen, etc.) is to be constituted as such within a particular social practice. There are many different kinds of practices. New ones come into being; old ones fall into disuse. Existing practices change. Being constituted as an actor in one practice is often a prerequisite for participation in others. Thus, for example, to be a participant in the domain of political philosophy, as I am while I am writing this, requires as a precondition that I be a participant in a practice which is quite distinct from it: the practice of reading and writing. In a similar way, in order to participate in the practice of scholarship one first has to be a participant in the practice of speaking, reading, and writing at least one language. We can all think of countless other examples of cases where participation in one practice requires membership of prior practices. Equipped with this insight of constitutive theory (or what Schatzki called ‘practice theory’) we may now turn to one of the statements with which Toni Erskine introduces Chapter 1 of this book: ‘Human individuals are generally thought to be paradigmatic moral agents’. Constitutive theory requires us to ask at this point: within what practice or practices are human individuals taken to be ‘paradigmatic moral agents’? We know that to be an actor is to be constituted as such within some or other social practice. We may thus ask about the practice which specifically constitutes people as ‘moral agents’. To be taken as a moral agent is to be taken as one kind of actor rather than another. Not all people are taken to be moral agents. For example, very young ones or people who are mentally ill are often considered not to possess such agency. The practice within which this kind of agency, moral agency, is constituted, like all practices, will have to be understood as situated in history, in a geographical location, and in relationship to other social practices. The moral agent as we conceive of him/her and the practice of morality within which he/she is constituted as such did not always exist.

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Philosophers as diverse as Hegel, Nietzsche, and MacIntyre have presented us with what might be termed ‘histories of ethics’ in which they show that our present-day conceptions of moral agency did not exist in former times. MacIntyre, for example, points out that in the Greek tradition as portrayed by Homer ‘the good’ (agathos) was specifically attached to the role of a nobleman. A nobleman was one who was kingly, courageous, and clever. These were not standards which noblemen ‘ought’ to adhere to, but were defining features of nobility. In a like vein the notion of ‘virtue’ was linked to the functions of particular classes of person. ‘Courage’ was attached to the function of warrior, ‘fidelity’ to that of wife, and so on. In each of these cases there was no suggestion that these people were moral agents as we currently understand the concept. The standards of conduct appropriate to specific roles were given, there was no question of the nobleman, warrior, or wife having to exercise moral agency. Homer (on MacIntyre’s interpretation) did not entertain the idea of noblemen, warriors, and wives having moral agency that would entitle them to pass moral judgement on the roles prescribed for them within Athenian society. Moral or ethical conduct was simply conduct in accordance with what the social structure required of one who was placed in a particular position.6 Hegel gives us a detailed account of how different forms of sittlichkeit have developed in a complex historical sequence from the Greeks to the period of the modern state. One of these forms he names moralität which he associates with the philosophy of Kant and Fichte. In terms of Kant’s analysis we are to conceive of the moral agent seeking to follow the categorical imperative, revealed by reason, which may often direct an agent to challenge the ethical standing of the rules under which the agent finds him or herself. This way of conceiving of the moral agent as abstracted from specific social ties has been used in elaborate arguments to justify liberal social orders. Hegel understood it to have existed in its most dangerous form in the French Revolution.7 Nietzsche, too, gives a graphic account of how it is only in modern society, after what he terms ‘The Death of God’, that we can conceive of actors with radical choices to make about the values in terms of which they wish to live their lives. Moral agency is not given in some ahistorical context, but we are required to understand its genealogy. He found many existing moralities to be slave moralities.8 I do not intend to go into a detailed description of the history or the form of the practice in which the moral agent as we currently understand him or her exists. At this point I simply want to make the bold assertion that whenever we talk of an agent (moral agent, legal agent,

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family member, shareholder, citizen, Christian, Jew, Hindu, soccer player, chorister, student, professor, voter, buyer, seller, critic) we are referring to an actor of a certain kind, such that we can only make sense of that kind of actor within the context of the wider practice within which he/she/it is constituted as such. To be constituted as an actor of this or that kind within some practice is to be set up with a prescribed menu of courses of action open to one. As a professor within the practice of scholarly life I have to understand the range of possible actions which are open to me. As such I know that I am recognized as one who is entitled to design courses, give lectures, present papers at conferences, and so on. Conversely, as a professor in this practice I also know what would count as misconduct on my part. I am under an injunction not to commit plagiarism, for example. There are similarly possibilities and constraints built into the other practices within which I am constituted as an actor (father, Christian, soccer player, rights holder, citizen, shareholder). All actor-constituting practices have built into them what Charles Taylor once referred to as ‘value slopes’ but which I prefer to refer to as an embedded ethic.9 Those who participate in these consider that the practice in question achieves or realizes some important values. It always makes sense to ask of a practice, ‘What are the values which are embedded in it?’ This can be asked of sporting, religious, familial, economic, and political practices (to name but a few of the many categories of practice). For those constituted as actors within practices, participation in them is not pointless. Quite the contrary, through participation in the practice they realize certain values which are important to them. A failure to pursue the embedded ethic would result in the person ceasing to hold the status of actor in that practice. At the extreme such failure leads to excommunication. It is crucial to note, though, that participants in practices (and in this category I include those who participate in a practice by being selfreflexive about it as I am being in writing this chapter) may well not agree on what the rules of the practices are and may disagree on the details of the value slope. A good example of what I am getting at here is provided by the ongoing disputes between liberals about how best to understand the values embedded in liberal social orders. John Rawls, in A Theory of Justice, provides one view; Michael Sandel provides a rival view.10 The disputes about the basic constitution of the practice, and about the values which it promotes, creates and protects, are themselves part of the practice itself. Practices are not static but change over time as a result of, among other things, the debates that take place within them.

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The disputes within IR about how best to interpret current changes to the international order under globalizing conditions are themselves part of this academic practice. In the light of the above, we are now able to assert that we who consider ourselves to be moral agents are constituted as such within a particular practice. Noblemen in Greek city states, people in the feudal order of mediaeval Europe, and Bushmen in the Khalahari desert in the nineteenth century provide but three examples of people who did not consider themselves to be participants in such a practice. A core feature of constitutive theory (and practice theory) is that it rejects any suggestion that we might start an ethical enquiry by considering the reasoning of a moral agent who could be envisaged as being in some sense free standing, socially unconnected, and outside of any particular historical period. It rejects the starting point of ‘chain’ theories as discussed above. This is, of course, a standard communitarian point.11 Contrary to some communitarian views though, constitutive theory argues that a person’s identity is not completely created within any particular face-to-face community. Rather, people are constituted as actors in a whole range of different social practices whose extent, borders, and membership do not necessarily coincide. Thus, a person may be constituted as a father within the practice of a family, a professor in the practice of scholarly life, a Christian in the practice of Christianity, a rights holder in civil society, a citizen in a democratic state, and participant in a variety of sporting practices. In each one of these the person is constituted as an actor with a menu of possible actions open to him or her. What precisely these are is a matter of interpretation. Thus, we may inquire what would count as appropriate ethical conduct by a doctor within the practice of medicine, now that all kinds of new possible courses of action have been opened up by technological breakthroughs in genetic engineering, for example. In like manner we may inquire about what it would be ethically appropriate for an athlete to do within the context of the practice of athletics now that new performance-boosting substances are available. Constitutive theory makes it clear that the judgement about what it would be ethically appropriate for an actor in a given practice to do, is not a judgement that may be definitively made by the actor in question. Thus, although all acts are, by definition, carried out by some actor, and there is thereby a sense in which that actor is author of that act, it is not the case that the actor is sole judge of the action’s moral worth. The individual actor is not sole author or judge of what it is ethically appropriate to do. What is ethically appropriate for an actor to do under

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given circumstances involves making an interpretation of the actor’s circumstances within the practice in question. Any interpreter of the practice can attempt this. To take an example from sport, while a soccer match is in progress, the person with the ball is the one who has to make the next move, but whether the move he or she makes is in accordance with the value slope embedded in the practice of playing soccer, depends on an interpretation of what would be appropriate to do in those circumstances. This interpretation may be made by any participant in the practice whether it be the player in question, another player, or a spectator. The key implication of the above for the theme of this chapter then is that understanding and evaluating particular actions requires getting involved in the interpretation of the actions in question from within the context of particular practices. It is this insider perspective which is crucial. Since practices are, by definition, social, it follows that one cannot hive off the ethicality of an actor and his or her actions from the practice within which they take place. Agency presupposes social practices each with its associated ethic embedded in it. As already stated, all people are constituted as actors in a number of different practices. Thus, one and the same person might be constituted as father (in the family), as Christian (in the practice of Christianity), as civilian (in civil society), as nationalist (within the nation), and as citizen (in a democratic state within the system of democratic states). It is possible that what is required of an actor in terms of one practice, with its embedded ethic, might conflict with what is required of him or her in another. What is required of a person as a loyal member of the Croation nation might conflict with what is required of that person as a Christian. Since practices have to evolve and change in the face of changing technologies, changing social circumstances, and changing natural conditions, it is highly likely that from time to time contradictions and clashes might emerge amongst the multiple practices within which we are constituted as the people we are. Spelling out such contradictions and seeking out ways in which they might be brought into some form of coherence is the very stuff of ethical argument. What emerges from the foregoing is that moral/ethical agency is not best understood as a single attribute which every person possesses.12 Rather individual actors are moral agents only insofar as they are constituted as such within social practices which themselves have an ethical dimension. Moreover, constitutive theory invites us to understand that a person may be (and, indeed, most people are) constituted as many different actors in a range of different practices each with its own

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embedded ethic. The conclusion of this part of the chapter is that the individual can be taken to have moral responsibilities only as she is constituted as a particular kind of actor within particular kinds of social practices.

Multi-person actors Just as some practices establish individual people as actors of this kind or that (as fathers, mothers, priests, nuns, soccer players, opera singers, chess players, and so on), each with a specific menu of actions open to him or her and a clear idea of what would count as inappropriate behaviour for such an actor, there are other practices which constitute sets of people as single multi-person actors of this kind or that. Indeed, some actor-constituting practices are themselves subsequently constituted as multi-person actors (often referred to as ‘institutions’) in wider more encompassing practices. These include states, families, corporations, universities, and so on. According to this understanding, an institution, or multi-person actor, is a sub-category of the class of things that we know as practices. (I would suggest that all institutions are practices, although not all practices are institutions.) Those practices that we know as universities are examples of multi-person actors, themselves components of that wider practice we call academic life. Moreover, there are constituted within these practices a range of different kinds of multi-person actors which we know as departments, faculties, senates, councils, and so on. Each of these words refers to an actor that is not a single person but consists of a set of people who work in combination with one another to do such deeds as: produce a departmental report, make faculty policy, draw up a resolution of senate, confirm an appointment of a vice chancellor, and so on. Similarly, within that elaborate arrangement which we know as the state, a range of different actors is established such as a Parliament (often divided into two sub-actors, an Upper House and a Lower House), Constitutional Courts, Federal and Regional Governments, and so on. The state itself is constituted as a multi-person actor within the wider social practice of the system of sovereign states. Within this practice the states themselves are constituted as ‘individuals’. These states have in turn formed practices such as the United Nations Organization, which itself establishes a number of different multi-person actors. The General Assembly, the Security Council, and the specialized agencies are good examples here. It is important to note that the multi-person actors that I am discussing here are not merely groups of individual men and women

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acting in unison in an ad hoc way as might happen where a group of people more or less spontaneously cheer a speaker on a soap box at Hyde park Corner on a Sunday afternoon. The constitution of multi-person actors is a far more complex and interesting social phenomenon. In each of the examples of multi-person actors which I have mentioned above, there is within the practice taken as a whole a set of rules which spells out how a given subgroup of people are to relate to one another and to the wider practice as a whole in order to be considered an actor of the requisite sort. Thus within the practice of a university there are rules which spell out how a subgroup of participants in it might form that actor which we know as the Senate, what kinds of things a Senate can do, what kinds of action would be inappropriate to it, and so on. In like fashion, within the wide practice of a state, there is a set of constitutional rules which specify how a subgroup of people within the state may come to be that actor which we know as the Parliament, that actor we know as the Senate, the Government, and the Judiciary. Similarly, in the practice of states there are clear rules that spell out what subgroups of participants are to be called that form of actor we know as states. The practices within which these multi-person actors are constituted have, like all social practices, an ethic of one kind or another embedded in them. Each has within it its own value slope. Thus, to continue with the example which I have used a lot in this chapter, the practice that we know as the university, within which multi-person actors such as Councils, Senates, Faculties, and Departments are constituted, has embedded within it a complex ethic to do with the advancement and propagation of knowledge. The participants in a practice might not always agree on what precisely the ethic is which is embedded in that practice. But normally there will be some settled norms which most participants can agree on and there will be others that are more contested. The central point here, though, is that we can as always explore the value slope embedded in social practices and doing this will reveal to us what lines of action would be considered justifiable for actors within that practice. As an aside I would mention that we ought to make a clear distinction between the writing of the history of a practice, on the one hand, and the analysis of its internal constitution, on the other. The former is an account of how the practice came into being – of how it emerged from pre-existing practices.13 The latter involves an internal investigation of the constitutive rules of an existing practice. This involves spelling out what individuals are constituted as actors in the practice, specifying what menu of appropriate action is provided for them within that practice, what lines of action are prohibited, and what ethic undergirds the practice as a whole.

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In the light of this analysis of the way in which multi-person actors are constituted within specific practices, we can see that the question, ‘Can institutions have responsibilities?’, is somewhat odd. For what I hope to have shown is that to be an actor of any kind, be it a singleperson actor or multi-person actor, is to be constituted as such within a practice. This practice necessarily has an embedded ethic such that it requires of the actors constituted within it that they obey certain ethical constraints. Thus, for any individual or multi-person actor to maintain his/her/its standing as an actor of this or that kind, the actor in question has to uphold some or other plausible interpretation of the embedded ethic of the practice within which he/she/it has been constituted as an actor. All actors at all times face the possibility of deconstitution (or what I refer to above as ‘excommunication’) were they to completely deny the ethic that underlies the actor-defining features of the constituting practice. This applies to chess players, fathers, wives, civilians, citizens, churches, corporations, universities, states, clubs, international organizations, governments, and political parties.

Dispersed actor-constituting practices and moral accountability What has emerged in the argument so far is that actors such as fathers, soccer players, professors, and citizens are constituted as such within the practices of the family, soccer playing, the university, and the state. But these practices themselves may be constituted as multi-person actors in wider overarching practices such that families might be constituted as actors in exodus movements (such as that described in the Old Testament or that which took place in the Great Trek in South Africa in the nineteenth century), sets of soccer players might create soccer clubs within soccer leagues, universities might be constituted as actors in associations of universities, and states might be constituted as actors within the system of states and in the UN. To recapitulate: an actor-constituting practice might itself be constituted as an actor in a higher-order practice. Most contributors to this book have focused their attention on multi-person actors with clear authority and decision-making structures built into them. They have sought to explore the extent to which such actors may be said to have ethical responsibilities or not. Thus far in this chapter I have made the case that once we understand that all actors are constituted and ethically constrained within social practices, then it follows quite naturally that multi-person actors can indeed have responsibilities. In the closing sections of this chapter, I wish to explore a

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slightly wider question which is whether actor-constituting practices, that have not themselves been constituted as actors by higher-order practices, might in some way themselves be ethically accountable. There are some practices which, although they constitute actors within them, do not themselves become actors. These Schatzki refers to as ‘dispersed practices’.14 He refers in this connection to, among others, the practices of questioning and reporting.15 I would add to these, all practices of speaking a particular language (English, French, Zulu, etc.). These practices, since they are not set up as multi-person actors themselves in a wider practice, have no particular internal structure of government. They are not exclusive. Anyone may join them simply by learning how to participate. Those who participate in them can simultaneously with their membership of these practices, weave in and out of other practices. Such practices do not have as a constitutive feature clear hierarchies of authority that police clear boundaries. Although such language practices are dispersed practices, they still have, as do all practices, a specific ethic embedded in them. All of this, of course, is not to deny that dispersed practices may be incompatible with one another. Thus, for example, it would be difficult to participate simultaneously in both the Christian practice and the Islamic one. Can such dispersed practices also be held ethically accountable (in some sense) for what they bring about? Is there some broad sense in which they may be said to have responsibilities? These are important questions because both those external to such practices and participants with them frequently make claims that imply such accountability. I wish to tackle these questions by looking briefly once again at some features of some of the non-dispersed (i.e. integrated) practices we have considered. These range from individuals, through families, clubs, universities, states, international organizations, and so on. There is a more or less clear sense in which the actors constituted within these non-dispersed practices can be held morally responsible for their actions. For example, we often say that an individual, a family, a club, a university, a state, or an international organization was morally responsible for doing x. When the actor is a multi-person actor, it is normally the case that within it a leadership role is defined such that its occupant is held to be the one responsible for particular actions of the whole. This is often expressed in a short-hand fashion. We might say, for example, that President Clinton was responsible for the bombing of factories allegedly making weapons of mass destruction in the Sudan. Within multi-person actors such as states, those who do not hold high office can in some measure plausibly claim that what was done was not

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their responsibility (or that it was only indirectly so). Thus, rank-and-file US voters can claim that as individuals they are not morally responsible for President Clinton’s decision to support continued UN sanctions against Iraq. They might say that once a President has been elected he has the moral authority to carry out whatever policies he deems fit. In short, integrated practices such as states create clear loci of accountability – their governments are responsible for what they do. In democracies citizens are only indirectly responsible for the deeds of their governments. They express their responsibility through the electoral process.16 In dispersed practices, by definition, the participants constituted by them are not tightly bound within arrangements with clearly established governments such that the governments may be held ethically accountable for the deeds of the social practices they govern. Yet, in spite of this, we do pass moral judgement on the activities of such dispersed practices. That we do so, I find extraordinarily interesting. This is a topic worthy of further exploration by ethical theorists. I wish to suggest that we quite often pass ethical judgement on the activities of dispersed practices. Here are some examples. When considering certain historical developments in Africa we say of the dispersed practice of Christianity (the practice within which a certain set of people constitute one another as Christians by professing a specific set of religious beliefs and recognize such professions in others) that it was in large measure responsible for the introduction of modern forms of education on that continent, or, we may say of the dispersed practice of Islam that it is currently responsible for much of the welfare provision for poor people in North Africa and the Middle East. In making such assertions we are indicating that Christianity or Islam were somehow morally responsible for these outcomes. In making judgements like these we are making pronouncements about the ethicality of the activities (allegedly) carried out by such dispersed practices. The reference to Christianity and Islam here, is not a reference to some tightly integrated corporate actor (like the Roman Catholic Church), but to a set of individual men and women loosely bound together in a dispersed practice of religious belief. It is true that within such dispersed practices there are usually any number of tight knit multi-person actors, such as missionary societies, churches, schools, universities, and so on. But the term ‘Christianity’ and the term ‘Islam’ are not best understood as simply collective nouns standing for sets of such institutional actors. For Christians are bound together with other Christians, and Muslims are bound together with other Muslims, by common religious languages that precede the establishment of specific

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multi-person actors such as churches, schools, parties, states based on religion, and so on. To make the case that there is a dispersed practice of Christianity within which individuals constitute one another as Christians is not to deny that those who constitute one another within such practices often have intense disputes about how precisely to interpret its rules, but even in the midst of such disputes participants are united in knowing what rules are to be disputed. Let us consider, from two very different angles, just how and by whom such dispersed practices may be deemed to invite claims of moral accountability. First, consider this question from the point of view of those who do not participate in them. Those who are not participants in a given dispersed practice often hold that those who do participate in it are in a broad sense responsible for upholding the ethic which is embedded in it. That people do this is evidenced by the way that, through the centuries, participants of such dispersed practices as Judaism, Christianity, Islam, Hinduism, and Marxism (to mention but a few) have been persecuted by their opponents. In these cases, the persecutors have typically treated individual participants in these practices as morally accountable for the practice as a whole and as representing the practice as a whole. They treated them in this way even though it was always clear that the individuals thus judged were not part of any single multi-person actor with a central means of coordination for specific concerted actions. Participants in Christianity (or Judaism or Islam) were not being held responsible for some specific act, but were each being held accountable, in general, for the total set of activities that might be interpreted as being condoned, encouraged or prescribed by the embedded ethic intrinsic to the particular practice. Merely by being participants in such practices individuals were judged to be standing for the values realized by the operation of the whole dispersed practice. Second, consider the question of whether dispersed practices can be judged morally accountable for what they are seen to bring about from the point of view of the individuals who participate in them. From this perspective, too, participants in such practices often consider that as individuals they stand accountable for the whole. Where Islam (or Christianity or Marxism) is successful in some distant domain, even those participants who had no direct connection with its activities in that distant place, typically consider that a moral victory has been achieved for their form of life. In dispersed practices mere participation gives participants the sense that any fellow participant’s success in promoting or upholding the values embedded in the practice is a success for all of them. To be considered to be part of the whole, and to be held

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accountable for what the whole achieves, is, indeed, a great part of the point and purpose of participation in such practices in the first place. When an individual Christian, Muslim, or Jew stands up for whatever it is that Christianity, Islam, or Judaism stands for, this is considered a joint success by believers everywhere. The central point here is that both participants and non-participants consider dispersed practices to be morally praiseworthy or blameworthy in spite of the fact that such practices are, by definition, not constituted as coherent collective actors with specific loci of authority that control tightly coordinated sets of participants. A similar point may be made about the failures or mistakes made by one’s fellow participants in a dispersed practice. These are a source of particular shame, for the failures and mistakes reflect back on the whole of which one is part.

Conclusion Individual actors are moral agents only insofar as they are established as such within a social practice that has embedded within it a particular ethic. The very notion of an individual moral agent presupposes the existence of a collective practice with its associated ethic embedded in it. Moreover, every person is established as an actor in any number of different practices. The ethical dimensions embedded in each of these may or may not cohere. Working out whether the practices within which we are constituted form a coherent ethical architecture or not is, I believe, at the heart of what we do when we confront ethical problems in international relations and other spheres of our lives. Some actor-constituting practices, such as states, families, corporations, and so on, are themselves constituted as multi-person actors in wider more encompassing practices. These are practices of practices. The multi-person actors constituted in this way are constrained by the ethics embedded in the wider practices. A multi-person actor (such as a state) may be a participant in a range of different practices, and questions about the coherence of this ethical architecture will arise for such multiperson actors in much the same way as they arise for individual actors. Finally, some practices are dispersed practices without internal hierarchical authority structures. These include practices such as speaking a language, the practice of asking questions, the practices of Christianity, Islam (and other religions), and global civil society. The society of states itself is also a dispersed practice. Although dispersed practices are not constituted as single actors with a clear decision-making centre of authority, we do judge their activities from a moral point of view. Those within such a practice do this, as do those who are external to it. From both these positions

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we pass judgement on the achievements and failures of the dispersed practice seen as a whole. Such judgements are often encountered in ethical criticisms directed at the dispersed practices referred to by phrases such as ‘Global Civil Society’, ‘The West’, ‘Capitalism’, and ‘Islam’.

Notes 1 M. Frost, Ethics in International Relations: A Constitutive Theory (Cambridge University Press: Cambridge, 1996). 2 H. Kelson, General Theory of Law and State (New York: Russell and Russell, 1945). 3 Constitutive theory as I use it here derives from my, no doubt, crude and secular interpretation of G. W. F. Hegel, The Philosophy of Right (ed.), T. M. Knox (Oxford: Oxford University Press, 1973). 4 L. Wittgenstein, Philosophical Investigations (trans.), G. E. M. Anscombe (Oxford: Blackwell, 1963). 5 T. R. Schatzki, Social Practices: A Wittgensteinian Approach to Human Activity and the Social (Cambridge: Cambridge University Press, 1996). 6 A. MacIntyre, A Short History of Ethics (London: Routledge and Kegan Paul, 1966), chapter 2. 7 G. W. F. Hegel, The Philosophy of Right, Part Two; C. Taylor, Hegel (Cambridge: Cambridge University Press, 1975), chapter 14; J. F. Suter, ‘Burke, Hegel and the French revolution’, in Z. A. Pelczynski (ed.), Hegel’s Political Philosophy (Cambridge: Cambridge University Press, 1971), pp. 52–72. 8 F. Nietzsche, On the Genealogy of Morals (trans.), W. Kaufman and R. J. Holingdale (New York: Vintage Books, 1967). 9 See C. Taylor, ‘Can Political Philosophy be Neutral?’, Universities and Left Review, I (1957) 68–70. 10 J. Rawls, A Theory of Justice (London: Oxford University Press, 1972); M. Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982). 11 T. Allen, ‘Liberals, communitarians and political theory’, South African Journal of Philosophy, XI 4 (1992) 77–91; S. Caney, ‘Liberalism and Communitarianism: A Misconceived Debate’, Political Studies, XL (1992) 273–89. 12 I am aware that both Hegel and many philosophers who followed him drew a sharp distinction between ethics and morality. I myself made use of this distinction earlier in this chapter. However, in what follows I shall use the terms interchangeably. 13 The history of the development of the modern states system would involve the telling of a very long tale about the rise and fall of empires, wars between great alliances of political actors, the gradual emergence of the global capitalist economy, and so on. 14 Schatzki, pp. 91–8. 15 I am not sure that my understanding of dispersed practices exactly matches that used by Schatzki, but I find it a suggestive point of departure for what follows. 16 David Runciman discusses this relationship between governments and citizens in Chapter 2.

6 When Agents Cannot Act: International Institutions as ‘Moral Patients’ Cornelia Navari

Some entity must be on the receiving end of the moral agent’s action. Such an entity, which must be capable of having a moral right or a moral wrong done to it in virtue of what it is in itself, is a moral object, moral patient, or moral recipient. William Landman1 Greece is ill and I am her doctor. Costas Semitis2 There are two ways in which collectives may be considered subjects of moral concern, or have moral standing. One, discussed in the other chapters in this book, is as moral agents. Moral agents are characterized by the possession of autonomy, rationality, and choice, as well as by the ability to take responsibility for their actions. The other is as moral patients. Unlike moral agents, moral patients may not be autonomous, they may not have reasoning capability, nor are they necessarily in a position to make moral choices. They are entities whose chief characteristic is not that they have duties, but rather that they are those to whom duties may be owed. Rather than duties, they may have rights. In any event, they have moral standing, even if they lack the usual criteria for moral agency. Here, we will be considering the status of moral patient, and whether, and in what respects, it is proper to regard some international collectives, not as moral agents, but as moral patients. The argument will consider, first, various criteria for moral patienthood, including the concept of intrinsic value. It will then consider whether quasi-states and 100

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frail alliances, among other international collectives in disarray, are still worthy of moral regard. The central question is whether such entities have intrinsic value – value in themselves – despite being unable to act.

The idea of moral patienthood In the structure of obligation, moral objects, or moral recipients, are central because it is obligations to entities that have moral standing that completes the notion of a specifically moral obligation. I can harm a tree. But it is not clear that in doing so I am offending some moral dictate. It is only if the tree has moral standing that I will be performing a moral (or immoral) act vis-à-vis the tree in question. (Alternatively, the tree may have instrumental value – a family may live in its shade – but we shall return to this important point below.) The idea of the moral ‘patient’ has been developed in medical ethics, and is widely used in animal ethics, to imply obligations to a class of beings that may have moral worth, but limited or circumscribed autonomy.3 While a moral agent can act morally or immorally, can have duties, and must be capable of reflecting on reasons and deliberately choosing in the case of a moral choice, a moral patient is one in whom autonomy and the ability to take moral responsibility may be lacking. An ill person has moral considerablility, even if his reasoning capability and/or autonomy are limited. He has moral standing, even if he cannot act in a morally responsible manner. The problem addressed by the concept in medical ethics concerns the degree of autonomy, and the rights, of the ill person.4 Should this person be considered an ‘object only’ in relation to the doctor or specialist treating him? He is ill and he cannot treat himself. The notion of autonomy and rights may become meaningless in the actuality of the treatment process. What rights can he actually exercise in respect of his treatment? What are his choices, and at what point can they legitimately enter into his treatment? The dilemma is accentuated if we consider persons in coma. Here, there is no question of reasoning or moral choice. But, equally, if we tie moral concern or moral personhood to reflection and choice only, then such persons may suffer moral disregard. They may suffer the fate of becoming objects only, those who, in Aristotle’s terms, may be acted upon without regard to their moral status as humans.5 The concept of moral patient is meant to draw attention to the fact that even those who cannot exercise their rights may nonetheless have rights, at least rights

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of due regard, and moral consideration. They cannot be treated as objects only; we have duties and obligations towards them. The basis of such duties and rights of regard is, however, disputed. In some theories of moral considerability, only those who have antecedent rights can be considered ‘moral patients’. In the case of ill persons, it might be argued, it is the fact that they have autonomy and can make moral choices, even if partially in suspension or necessarily limited by circumstances, that makes them ‘moral persons’. (Note that O’Neill and Erskine suggest that varying moral capacity does not disqualify one for moral agency.6) They are moral persons because they were and might again be autonomous, self-reflecting agents. They are moral patients because they are moral agents. Many who hold the agent-centred view of moral standing would argue, moreover, that it is the concept of antecedent rights that guides us to the duties, to the ‘what’ that is owed to the ‘moral patient’. In the case of ill persons, goes the argument, we in fact define our duties to such persons by treating them as if they were agents with some degree of autonomy and the capacity for purposive action, when, obviously, these are limited. Indeed, we fulfil our duties by enabling them to exercise their rights (by, for example, explaining treatment and giving the patient a collaborative status with the doctor in designing the treatment plan).7 Even some ecologists tie moral standing to the concept of antecedent rights. They treat animals and indeed even non-sentient entities such as woods and mountains ‘as if’ they had rights.8 Some go so far as to assign a range of human characteristics (such as ‘aliveness’) to justify such rights-holding, all in order to give them moral standing and to make them worthy of moral regard.9 But the possession of antecedent rights is not the only way of achieving moral standing. Another route is through the concept of ‘intrinsic’ value. Here the emphasis is not on rights, self-reflection, or rationality. Rather it is on the status of the moral object as having a value in itself. Thus, Tom Regan argues that animals do not have ‘rights’ in the way human have rights, nor do they have ‘life plans’. They are not capable of moral reasoning, nor do they exercise moral choice in the way we would understand ‘moral choice’. But they nonetheless have consciousness of themselves and they are not indifferent to their fates. Thus, they have value in themselves, and they cannot therefore be treated as mere objects in others’ life plans.10 Here, intrinsic value – value in itself – is the criterion for moral standing. This gives rise to Regan’s distinction between intrinsic and instrumental value – a distinction that, in his case, supports the division between animal

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rights and the non-rights of inanimate nature. According to Regan, collectives such as woods and mountains may be valuable to us, in that we may regard them in an aesthetic or other light that makes them ‘important’, but they are important to us, and not important in themselves. They are accordingly not true collective moral patients, that is, worthy of specifically moral consideration. Mountains and forests may be important, but they are important instrumentally; and when we care for them, it is not because we have duties towards them, but rather duties towards ourselves (and other persons of moral standing). They have indirect moral worth only; the actual ‘moral object’ is the moral persons that inhabit or depend upon mountains and trees. An exemplar of indirect, as opposed to intrinsic, moral worth concerns the ‘rights of dead bodies’. Those human rights workers dealing with the relatives of the victims of genocide often face the perplexing issue of the moral status of the dead, who are said to ‘deserve a proper burial’. It is sometimes claimed that the dead have ‘rights’ to a proper burial. Yet, the dead are neither sentient, nor can they suffer, much less take moral responsibility for their beings. One account may treat them as moral patients who have rights, and moral standing, without being able to exercise those rights (and who are deserving of moral considerability, nonetheless). But it may be more philosophically reasonable to see them instead as a case of instrumental, as opposed to intrinsic, value – as being valuable to us in that their treatment reflects on our moral standing as human beings. Our treatment of them may, for example, cause moral harm to their families. This is, however, distinct from the dead body having moral considerability in itself. An allied approach to Regan’s association of intrinsic value with the possession of rights is Peter Singer’s ‘Principle of Equal Consideration’.11 Singer agrees with Regan that abstract reasoning is not the only basis of moral standing. But he seeks to make more precise the notion of intrinsic value. He maintains that such value arises from sentience, particularly from the ability to suffer. In the animal rights debate, Singer has argued that it is neither rights, nor autonomy, nor ‘aliveness’ that give rise to moral standing but the quality of being sentient and accordingly the ability to suffer. (In Singer’s account, by extension, all humans are potential moral patients, all the time, as well of course as being moral agents.) Given that they have that ability, animals cannot be counted for less in ethical deliberations just because they belong to another species, nor could humans count for more, just because they are humans. (Singer’s argument does not, however, entail identical treatment of human and non-human animals, not least because in specific circumstances, that is, starvation, humans are capable of greater suffering.)

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These arguments point to two different but equally valid sets of criteria for moral standing. On the one hand, we have the cluster that includes autonomy, rationality, the ability to make moral choices, and rights. Here the significant link is between agency and moral considerability. In this sort of argument, the moral patient is understood to be able to assert certain claims, often expressed through the notion of rights (which are often analogized to legal rights that could be pressed in a court). He is an agent, but his capacity for agency is somehow and for some reason limited. On the other hand, we have the cluster that includes intrinsic as opposed to instrumental value, and which may include the quality of being sentient or the ability to suffer. Here the significant factor is the notion of an entity with moral standing, or an entity to which a duty is owed, irrespective of its status as an agent or bearer of antecedent rights.

International institutions as moral patients Can institutions be worthy of moral regard, or moral concern, as an intrinsic feature of their own being? It is clear that we value institutions, but we may value them in the same way that we value forests and mountains, as the environment of action – as instruments of our own wellbeing. We may feel strongly about such institutions, and we may want to protect them, but we may be doing so because they are useful. Alternatively, we may value them because they have a being in themselves. During the course of his famous lectures on German history, Treitschke would weep for the fate of ‘Germany’. Germany was a moral being for Treitschke, a subject of moral consideration, such that duties were owed to it. When he wept, it was because Germany was suffering, and in the sense of not being able to realize itself. He was postulating that Germany could suffer a moral wrong. Was Treitshcke attributing a moral status to an essentially a-moral entity? One initial route by which to consider whether international institutions may have some moral duty owing to them is to consider them in the light of genuine moral agents, but whose autonomy may, for some reason or other, be in suspension or be limited. One obvious candidate is the quasi-state. Erskine has discussed the moral problem of quasistates earlier in this volume, and explores their status as moral agents. Quasi-states are those that, in Jackson’s terms, were posited by international society and whose territorial jurisdiction and bureaucracies are creatures of colonialism and trusteeship. Partly in consequence, they are deficient as apparatuses of power, which affects their capacity to act, and

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more particularly their capacity to conform to moral decisions. Erskine regards these as necessary conditions for moral agency. Erskine’s route is to analogize such states with individuals who, among themselves, display a range of capacity, without losing their status as agents. She maintains that, in a similar fashion, there is a continuity among institutional moral agents with regard to capacities, which does not qualify their status as moral agents. She also points out that we do not expect every individual to do everything, nor do we assign equal degrees of responsibility to every individual for every outcome. She recommends the same approach to the quasi-state. It may, however, be more helpful, and revealing, to consider the quasi-state as a moral patient – in this case as an agent that has lost the capacity for agency. In considering the quasi-state as a moral patient whose capacity for agency is limited, one relevant matter is the intent of the ‘society of states’ in creating such entities (or perhaps more accurately the effect or consequence of their intentional acts). They were created as rights-holders, and they are formally the bearers of responsibility. These responsibilities are not merely legal; they are moral, in that they cannot be reduced to mere legalities. Quasi-states have, for example, the duty to respect other states. In other words, they have the formal characteristics of genuine moral agents. They are expected to act, to be the bearers of responsibility, to keep promises, and to weigh up actions. But they may not be able to exercise these in a meaningful manner. Indeed, they are ‘quasi-states’ because they cannot exercise these capabilities in a meaningful manner. This seems to be a clear case of a moral entity with moral responsibilities, which, however, cannot exercise the normal powers of such an entity. The case becomes clearer if we argue the other way around, and ask whether we have determinate duties to such entities – duties that can be specified. The balance of power argument would appear to imply that we do not – that we can treat quasi-states solely in respect of their role as disturbers of the balance of power, or disturbers of some other international peace, and that their rights may be disregarded in such cases. According to the balance of power argument, quasi-states can be treated as ‘objects only’. But such an attitude is not, in fact, replicated in practice. If we were, in Jackson’s terms, to ‘interrogate practice’,12 we would note that we do not treat them as if they are ‘objects only’. We feel that we have to respect them in some aspects of interstate intercourse, that we should not interfere with them for our ends only (i.e., in a purely instrumental manner). They would seem, moreover, to have some rights of regard. They have, for example, the right to be treated as states with respect to the formal attributes of statehood.

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At the same time, however, we do not treat them in all respects ‘as if’ they were states. It would scarcely be helpful in respect of the moral dilemma presented by quasi-states to do so, since the problem is that they lack some of the basic requisites of states. Nor is it possible to treat them as ‘immature’ states, since that supposes a relatively predictable growth cycle, such that when they reach a certain age threshold, we may assign them adulthood. In effect, we set up treatment regimes to treat them as far as possible like states, while guarding ourselves against the undesirable consequences of their being non-states. We treat them, in other words, as moral patients, in this case as capable in some respects but not in all. To say so is not to quarrel with Erskine’s view that agents display different capacities, and that quasi-states are also moral agents. (So, too, can ill persons be moral agents.) Nor is the argument that they have fewer duties than other states. Rather, the claim of moral patienthood is that this is a class of state towards which other states have special responsibilities beyond the ordinary responsibilities that states have towards one another. Another potential candidate for this type of consideration may be the General Assembly of the United Nations. In a purely contractual reading of the General Assembly’s duties, it is an institution designed to accomplish certain ends. In such a reading, it has legal responsibilities only, which it may fulfil or fail to fulfil. Moreover, the carriers of that responsibility are actually states and state representatives. It is those, persons or states, who are carrying the legal derelict when, for example, they refuse to pay their financial subscriptions in respect of peacekeeping. The object of moral harm in such a purely instrumental reading is not, moreover, the General Assembly itself, but rather other states and the citizens of other states, in the degree to which, for example, withholding payments may be causing them anguish, inconvenience or harm. In a purely legal reading of the General Assembly’s role, no moral harm can be suffered by the General Assembly per se, since it has no specifically moral responsibilities. In another reading, however, the General Assembly does have moral responsibilities. It is intended to express the moral consensus of mankind, and to provide the locus for the aggregation of an international general will. In the latter reading, the General Assembly may be analogized to Rousseau’s state as a ‘moral fact’, a sign that states were willing to sacrifice their particular wills to the general will. Accordingly, impeding the emergence of that will would be a moral, and not merely a legal, derelict. In such a reading, the General Assembly, like the quasistate, could be morally harmed.

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But what about the autonomy and personality of other international collective agents, such as NATO, the Security Council, the IMF, or even the ‘international community’? Here, the moral persona may be questionable. As has been argued in previous parts of this volume, it is possible to assign duties to such agents, and to hold them accountable for their actions, by invoking criteria such as ‘rationality’ and ‘the capacity to act’. The question here is their standing (and ultimately our duties towards them) if they lose the capability to act. If, for some reason, these capacities were to go into suspension, would these entities still be objects of specifically moral consideration? Would they be deserving of moral considerability if they could not act? One approach to these more arguable cases is the simple contractarian route (although, as David Runciman points out in Chapter 2, this route is not so simple as first appears). In simple contractarianism, a legally responsible agent is generated through the contractual act, which is conceived as a willing act on the part of ‘the principles’ who in effect create an agency that acts on their behalf. In contractual terms, it is the contractual act, among states, which gives rise to a collective identity such that NATO can act or the Security Council can act. In the present analysis of moral patienthood, however, we are concerned with the unraveling of this collective identity, and with the institution’s loss of its power to act. Political theory has paid much more attention to the generating of a public power than to the degeneration of a public power, or to the moral consequences attendant on such degenerative processes. But taking contract theory at its simple level, we may postulate that one reason that an international public power has degenerated is because its ‘animating’ wills have been redirected (because of changing interests, etc.). We might therefore postulate that if some collective institution has lost capacity, it is because states have withdrawn their interests and attention from it. If this were the case, however, then according to simple contract theory, the international collective in question would have lost the only qualities that gave it any standing in the first place. In simple contract theory, it is only the ‘union of contracting wills’ that gives international institutional collectives legal existence, much less moral status. Once this is withdrawn, there is no entity to be concerned about, moral or otherwise. These cases may be analogized to trusts. Unlike quasi-states, or arguably the General Assembly, who are carrying a moral trust for others, the subjects and the contractors of NATO and the Security Council are the same – states have created them and states are their principles.

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As trustees of a trust made on their own behalf, they are free to dissolve it without moral opprobrium. By the trust view, states could leave NATO with no stain on their consciences and without moral regard for that institution. With regard to a reputed agent such as ‘the international community’, where there is lack of institutionalization, and therefore lack of any real responsibility, a contractarian would argue that there is no true collective agent at all and therefore no duties towards it. As such, neither can it be, in abeyance, a true object of moral concern. But it is not often the case that international collective wills, and the institutions expressing those wills, simply disappear. More often, the concern is to enhance that will, or alter its direction; and sometimes it is a case of a sick institution that needs treatment. O’Neill has underscored the requirement to ‘transform agency’.13 In the case of the ‘sick institution’, or the institution that calls out for being transformed, would such a transformation be a matter of duty? Would this institution, moreover, have rights in respect of those ‘treating’ it?14 We may imagine circumstances in which we want NATO to act more robustly (or to desist from acting). Presently, indeed, states are in the process of revising NATO. Does NATO have rights of regard towards those treating it? And how frail or lacking in robustness does an international collective have to be before it loses all such rights of regard? For example, does a feeble and frail ‘international community’, a community which cannot in Erskine’s terms be considered a moral agent at all, be nonetheless a moral patient, a subject of moral considerability, such that it could be morally wronged? The contractarian of an individualist persuasion would probably argue that, in assigning rights to institutional collectives, we are simply creating capacity in organizations that we want to do things. These are not the sort of rights that have to do with moral agency or autonomy. Such rights are, in a sense, instrumental rights, rights that are created to accomplish a particular end. In Oakeshott’s terms, such institutions are purposive associations that have either outlived their purposes or that have acquired new purposes such that their capacities need to be enhanced.15 In essence, they have no intrinsic value. We might, of course regret their demise or their poor condition. We might even argue that the idea of a collective will has a certain moral persuasiveness surrounding it, as in for example the idea of a League of Nations or a European security community, such that we might want to recreate it. But we are not in the presence of a frail entity – an existing Ding an sich, a ‘being in itself’ – that can be morally harmed and has determinate duties owing to it. Such entities would simply be tools that have outlived their usefulness or their appropriateness. When they decay, we can

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simply forget about them, in a pure contractarian account, in the same way that we have forgotten about the Central Treaty Organization (CENTO) and the South East Asia Treaty Organization (SEATO), which were composite alliances at some point and which have simply been redrafted into new institutional forms, such as the Association of Southeast Asia Nations (ASEAN). But the simple contractarian route is not the only way of understanding the construction and existence of collective will. There is the, albeit rather weak, Kantian ‘nuomenal’ route that does postulate duties, and determinate duties, to weak or even non-existent institutional entities. There is, also, the stronger Hegelian route that gives such entities a genuine moral personality, such that they can be harmed in a meaningful moral manner. Kant not only postulated a natural duty to perfect institutions; he also accorded a type of moral standing to such institutions.16 Hegel, by contrast, poses a genuine moral obligation to a specific moral persona.17

Natural duties versus moral personhood Kant considered duties to be at the heart of moral action. He also emphatically denied that interests were the key to understanding the source of our duties, or that duties were interest-based. According to Kant, interests (and actions to serve interests) were quite separate from duties, since interests belonged to the realm of the phenomenal, to the realm of necessity, whereas the moral life belonged to the realm of the nuomenal, to the realm of free choice, guided by the moral precepts of the categorical imperative. By the Kantian route, we may consider two propositions (or, in Kantian terms, categorical imperatives): first, who wills the ends must also will the means; and secondly, that we must will the good. In her article, ‘Who Can Endeavour Peace?’, O’Neill points out, first, that a disparate conglomeration of individual wills cannot of itself endeavour peace. Secondly, she seeks to demonstrate that endeavouring peace is itself a possible good. She argues that Stoic detachment from the nuclear threat, while comprehensible, depends on demonstrating that little can be done to manage nuclear threats, which is untenable. The article is not only an argument for taking institutions seriously as moral agents, it is an initial guide to the transforming of institutions, so that they can promote the good in question, essentially by enhancing their capabilities for both right action and responsibility. In considering the role of international institutions, the question would be: can individual states endeavour peace (or secure distributive justice, or

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provide for ecological fairness)? In concrete terms, can Europe be a set of free states without NATO? If the answer is, ‘no’, then it means that we have to take seriously the capabilities of such institutions. Indeed, by a Kantian account, taking the capabilities of such collectives seriously will present itself, automatically, as a matter of duty. This, at least, would appear to be the argument in Perpetual Peace, where Kant argues that there is a duty to establish the conditions whereby ‘peace’, and the escape from the strictures of the balance of power, were brought closer to realization.18 In a Kantian account, institutions do not have to be ‘conscious’ to achieve a moral status, nor do they even require an antecedent corporal existence. (They do not need offices or rules or procedures to qualify; though they will need these to fulfil their moral obligations.) They merely have to be appropriate to the accomplishment of a potential moral good. If that good can be established as both a necessary good and a potential good – a good possible in the world (and in Kantian terms such goods are rationally generated) – and if it can be demonstrated that institutionalization is integral to the accomplishment of such a good (e.g., the conditions for perpetual peace in relation to an unstable balance of power), then institutionalization becomes a duty. We have, in other words, a duty to contract such institutions, as well as a duty to improve them were they to go into disarray, so that they can accomplish the end in question. We may not be able to begin this exercise de novo. We may have to start with actually existing institutions. But O’Neill’s instruction to ‘bend, break and redefine’19 would seem to imply that such an exercise can in theory be far reaching. In this transformative process, we are operating between goods owing to natural persons and a potential set of institutional arrangements, discourses, practices etc., which will instantiate the goods we wish to achieve. If the subject of our moral concern is the moral freedom of natural persons, the objects of our moral endeavours will be institutions. Part of that process, moreover, will generally involve enhancing the capacity of such institutions for agency. We will, as in the case of ill persons, be attempting to enlarge the rational capacity of the institutions we are in the process of creating, along with their powers of choice. Moreover, it would seem that we are doing so in respect of a duty. It would appear, then, that frail or even yet to be achieved institutions can be the recipients of duties. These may be indirect duties (in the sense that we may have duties in respect of achieving peace that are not duties to peace).20 But they are duties nonetheless, and duties that attach to institutional arrangements. To be the recipient of a duty confers, as noted above, a type of moral standing. By a Kantian reading, therefore,

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institutionalization itself can be a moral duty, and even a proposed institution can have a moral standing; in Kant, institutions may have a moral standing even before any contract is signed. Institutions that conform to categorical imperatives can be objects of moral concern even if they are not, yet, proper moral agents. The question is, can such entities suffer a moral wrong? Are they genuine moral entities? William Landman has distinguished between the general duty that we as humans have to encourage just institutions, and a specific moral obligation. A moral obligation, in the full sense, he calls not merely a specified obligation but an obligation to a specific moral entity.21 To fulfil that requirement, we would have to postulate a specific moral entity called NATO, or the international community, which can be morally wronged and whose potential moral wrong we are redressing. To put the question in another way: is there an intrinsic value to such institutions – do they have a value in themselves, apart from their, instrumental, value to us? The Kantian view is not entirely clear. It implies a certain instrumentality to such entities. It would appear that they are means to some end, desired by us. They have a moral significance, but they do not seem to have rights of regard, in themselves. It is not clear that they can be morally wronged. They are not (and Kant’s ideal state was not) like Treitschke’s Germany, for which we might weep if its rights are traduced or its being put in danger. Is it possible to go further than the Kantian view? Can it be argued that some institutions have intrinsic value, apart from their instrumental value to us, individuals with purposes, such that we may feel a sense of collective moral endangerment, or a sense of collective moral outrage, if they go into disarray? To make this question somewhat more concrete, let us consider some actual institutions. During the Cold War, the Security Council became deadlocked and was unable to carry out tasks associated with preserving the peace. Does the value of the Security Council lie only with individual human valuers, and valuers with individual purposes, such that it can only be valued in the degree to which it is useful or functional to those purposes? Or do we rather have a duty to facilitate, support or honour the Security Council even when it is failing in its purposes, even when it is not preserving the peace? When the League of Nations failed, a generation of liberal internationalists did, in fact, weep. Was this misplaced idealism postulating an untenable holism? The classic answer to this question was given by Hegel, following Rousseau, when he asked ‘Who are “us”?’ The context, appropriately, was the inquiry into the value, and status, of citizenship. Both argued

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that citizenship could not be made up of an aggregate of individual rights only; citizenship must also be a social fact. Citizens must be recognized by other citizens, and there must be a social (political and legal) category of citizenship, for citizens to enjoy rights. More relevantly, both observed that it was also ‘citizens’ who valued citizenship. It is people who have the idea of citizenship in their heads, whether potential or actual, who want to be citizens. In Rousseau’s account, as noted above, the sign of that moment was contracting to obey the general will, and hence his argument that contracting did create a ‘moral fact’. It is difficult, in short, to treat the distribution of rights and duties that make up the state as instrumental only, as if those rights and duties were separate from the identities that the state creates. The rights of citizenship are constitutive of modern identities. Accordingly, citizenship must have intrinsic, and not merely instrumental value. It must have a value in itself, apart from any merely instrumental value to us. The question, then, is whether the collectives to which the state belongs are identity-constitutive in the same way that the idea of the citizen is identity-constitutive? Two contemporary theorists have argued in the affirmative. Mervyn Frost has argued that one cannot be a citizen of a free state unless that state is also recognized by a community of free states. He maintains that the community of states is constitutive of state identity, which is, in turn, constitutive of individual identity. One, in short, cannot be a free person outside the context of a free state, and the state system is part of the constitution of the free state.22 Robert Jackson poses a similar relationship when he affirms that the pluralism of civil society is made possible by the pluralism of the state order.23 In both formulations, the community of states is a Ding an sich. It has a value in itself, apart from its instrumental value in preserving the balance of power or ensuring economic growth. Accordingly, it could be a genuine subject of moral concern. It could suffer a moral wrong. To make this argument less abstract, let us return to the liberal internationalists who wept when the League failed. In the moral and social thought of that ‘idealist’ generation, there was an emerging international society constituted by progressive individuals whose progress depended on the further perfection of the liberal state. That, in turn, depended on the institutionalization of progressive goals and progressive modes of interest-mediation within the League of Nations, which would transform those interests onto ‘higher’, more cooperative, planes. The interaction of state leaders within the League, whose goals and working methods instantiated ‘higher ideals’, would lead to the ‘education’ of both leaders and citizens in defining their individual and

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collective goals, which would in turn create wider moral possibilities for individuals within the community of increasingly liberal states. When the League failed, and liberals wept, they were weeping for a loss of moral possibility in themselves. International collectivities may indeed have intrinsic value. That value is not carried in the collective, but in the heads of the participants who recognize that their rights, and autonomy, are also derived from the social facts of NATO, the Security Council, and even, perhaps, international society.

The implications of being a moral patient Sometimes we want to know whether agency can be carried by a collective. At other times, however, our concern is not with agency, but whether the collective is worthy of moral regard, or moral concern, irrespective of its being an agent and when it is not capable of acting. We may want to know whether NATO deserves consideration when its very being is called into question, or whether the Security Council could have been packed up without further regard during the height of the Cold War when it became clear that the major powers were deadlocked. According to some theories, an institution cannot be worthy of moral regard unless it is, at the same time, a moral agent with autonomy and rights, which it is in a position to exercise (at least in the normal course of events). By the agent-centred theory of moral patienthood, one cannot be a moral patient unless one is at the same time a moral agent. But if this were the case, we would not actually need the category of the moral patient at all. If there were only moral agents, we would only require a set of guidelines as to the duties of such agents. The problem that the contemporary concept of moral patient is meant to address is the problem of when a moral agent, among other entities of potential moral standing, cannot exercise agency, or cannot exercise it fully. In this case, the question becomes how to restore agency to such a collective. (Or, alternatively, how to treat such an entity when full agency cannot be restored.) It is this moral problem that the category of moral patient is meant to illuminate, and it does so by proposing two ideas; that we might have specified duties to such entities and that such entities might have rights of regard, in themselves. As to whether international institutions can qualify for this status (NATO in disarray; the Security Council unable to act) and whether they have moral standing such that they might qualify for moral patienthood, I have made several tentative suggestions. One is the case

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of the defective institutionalized moral agent. This is a constituted carrier of moral obligations, such as the quasi-state or the General Assembly, which cannot fulfil its responsibilities. If we consider our obligations to the quasi-state, these are both short and long term. In the short term, our obligations are to preserve its formal statehood while protecting ourselves from the deleterious effects of its imperfect condition. In the long term, however, it would seem that we do have an obligation to help it achieve full internal as opposed to merely external statehood. In the case of the General Assembly, our moral obligation is not to interfere with its ability to argue, define and instantiate those normative goals that it was instituted to achieve. If we consider institutions in the Kantian class, these are institutions to which duties are owing, but which are not fully moral persona. Here, our duties are specified by the ‘good’ we have rationally determined. Practical reason implies that we give those institutions the capacity to work towards the ends we have in mind. We do not have undifferentiated duties, such as ‘obedience to’, or ‘recognising the rights of’. Our duties would be specified by particular goods, such as avoiding famine, avoiding nuclear accidents, or avoiding being in the position of environmental risk. In the degree to which such ends cannot be accomplished by individual wills, or even by individual wills acting from within the carapace of the state – in the degree to which these have to be collective endeavours, and among states – this implies institutionbuilding, and creating institutions with the capacity for both reasoning on a large scale and acting on a large scale. In this category, we might consider the emergence of a security community in the European space. In the degree to which European security must be a common endeavour, and an endeavour that includes the Balkan states as well as the states of Central Europe, we have a natural duty to consider which arrangements would facilitate the emergence of such a security community. Finally, there is the Hegelian-type of institutional persona. This category is more limited and also more historically contingent. It might include, presently, the liberal community of states; it would clearly include global civil society. It might, for a brief moment in time, have included the socialist international. These entities deserve recognition of their centrality to our conceptions of ourselves, and they deserve fostering as an aspect of our own self-development. They can be morally wronged by treating them as instruments only, and as instruments to short-term and individual purposes. They can be wronged by our failure to acknowledge that our moral being, our autonomy and rights, are constituted by some social formations that exist beyond the state.

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Notes 1

2 3

4 5 6

7

8

9

10 11

12 13

14

W. Landman, ‘On Excluding Something from our Gathering: The Lack of Moral Standing of Non-sentient Entities’, South African Journal of Philosophy, X 1 (1991) 7–19 (p. 8). Press Conference, Athens, 30 April 2000. See, for example, R. M. Hare, ‘Medical Ethics: Can the moral philosopher help?’, in S. F. Spicker and H. T. Engelhardt (eds), Philosophical Medical Ethics: Its Nature and Significance (Dordrecht and Boston: Reidel, 1977), pp. 49–62; M. Lockwood, (ed.) Moral Dilemmas in Modern Medicine (Oxford: Oxford University Press, 1985); P. Singer, Practical Ethics (Cambridge: Cambridge University Press, 1979). R. Gillon, ‘Autonomy and Consent’, in Lockwood, ed., pp. 111–25. Landman calls them ‘temporarily non-sentient post-persons’; Landman, p. 11 and n. 4. T. Erskine, Chapter 1, and O. O’Neill, ‘Who Can Endeavour Peace?’ in D. Copp (ed.), Nuclear Weapons, Deterrence, and Disarmament (Calgary: University of Calgary Press, 1986); Canadian Journal of Philosophy, Supplementary Volume XII (1986), pp. 41–73 (pp. 51–7). For a discussion of the rights-holder viewpoint, see Gillon, and I. Kennedy, ‘The Doctor, the Pill and the Fifteen-year-old Girl: A Case Study in Medical Ethics and Law’, in Lockwood, pp. 32–75. For example, J. Feinberg, ‘The Rights of Animals and Unborn Generations’, in J. White, (ed.), Contemporary Moral Problems, 3rd edn (Minneapolis, MN: West, 1991), pp. 368–93. In some circumstances, however, such rights may be overridden; see M. A. Warren, ‘The Rights of the Nonhuman World’, in J. White, pp. 394–410; for the original and somewhat contemptuous dismissal of the animal rights position, see D. G. Ritchie, Natural Rights (London: Allen & Unwin, 1894). T. Reagan, The Case for Animal Rights (London: Routledge and Kegan Paul, 1983). P. Singer, ‘Not for Humans Only: The Place of Nonhumans in Environmental Issues’, in K. E. Goodpaster and K. M. Sayre (eds), Ethics and problems of the 21st Century (Notre Dame and London: University of Notre Dame Press, 1979), pp. 191–206. R. Jackson, The Global Covenant (Oxford: Oxford University Press, 2000), pp. 91–6. ‘The task … must be the practical one of … transforming or creating agents for whom … some powers to reduce nuclear dangers [are] graspable’. She also speaks of the need to ‘take full account of present political structure, and then bend, break or redefine those structures …’. ‘Who Can Endeavour Peace?’, pp. 69–72. Invoking a very different metaphor, Erskine contemplates a duty to ‘rehabilitate delinquent institutions’ in ‘ “Blood on the UN’s Hands”? Assigning Duties and Apportioning Blame to an Intergovernmental Organization’, Global Society, XVIII ( January 2004). However, she does not present such a duty as corresponding to a right possessed by the institution in question.

116 Cornelia Navari 15 Michael Oakeshott distinguishes between purposive associations and rule-governed, or true, civic associations in On Human Conduct (Oxford: Clarendon, 1991), pp. 121–4. 16 See T. Donaldson, ‘Kant’s Global Rationalism’, in T. Nardin and D. Mapel, (eds), Traditions of International Ethics (Cambridge: Cambridge University Press, 1992) and T. Donaldson, Corporations and Morality (Englewood Cliffs, NJ: Prentice Hall, 1982). 17 See Z. A. Pelczynski, ‘The Hegelian Conception of the State’, in Z. A. Pelczynski (ed.), Hegel’s Political Philosophy (Cambridge: Cambridge University Press, 1971), pp. 1–29; Z. A. Pelczynski, ‘The Significance of Hegel’s Separation of the State and Civil Society’, in Z. A. Pelczynski, (ed.), The State and Civil Society (Cambridge: Cambridge University Press, 1984), pp. 1–13. 18 I. Kant, ‘Perpetual Peace: A Philosophical Sketch’, in H. Reiss (ed.), Kant’s Political Writings (Cambridge: Cambridge University Press, 1970), pp. 93–130. 19 Note 13, above. 20 Institutions for Kant established the conditions for the liberty of individuals; in one formulation, we can have duties in respect of the laws without having duties towards the state. But this is also somewhat far fetched, since in the Kantian formulation, laws and the state are coeval. 21 W. Landman, ‘Moral Obligations and Medicine’, in S. R. Benatar (ed.), Medical Ethics: Some Philosophic Considerations (Cape Town: Department of Medicine, University of Cape Town, 1987), pp. 113–17. Landman draws on Rawls’ distinction between natural duty (involuntary obligations of a general nature), the formal duties undertaken in respect of a profession etc., and a moral obligation, which is a voluntary act undertaken in respect of a specific recipient. See J. Rawls, A Theory of Justice (Oxford: Oxford University Press, 1972), pp. 114–15. 22 M. Frost, Ethics in International Relations (Cambridge: Cambridge University Press, 1996), pp. 150–5. 23 Jackson, pp. 165–9.

Part III Hard Cases: Assigning Duties

7 NATO and the Individual Soldier as Moral Agents with Reciprocal Duties: Imbalance in the Kosovo Campaign Paul Cornish and Frances V. Harbour*

We make love by telephone, we work not on matter but on machines, and we kill and are killed by proxy. We gain in cleanliness, but lose in understanding. Albert Camus1 By focusing on questions of decision-making in the context of war, this chapter seeks to join the broader discussion of institutional moral agency in which the other contributors to this volume are engaged. This chapter will explore both the military and the moral relationship between one particular institution, the North Atlantic Treaty Organization (NATO), and one of its constituents, the individual combat soldier. In all complex organizations, there is an obvious and strong relationship between decisions made at the core of the institution and actions taken by individuals at all levels of the organization. Thus, when we speak of NATO ‘acting’, we often refer implicitly to the collective actions of individual military personnel. In a self-evident way, NATO, the governments that participate in it, and the many layers of subordinate headquarters, may all decide on policies and initiate strategies collectively, but they cannot act ‘on the ground’. In these instances, the organization decides and acts when certain individuals make decisions and draft orders on its behalf that guide actions further down the chain of command. At the same time, the organization’s behaviour in the field 119

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consists of the actions and choices of other individuals, shaped and guided by policies and orders from above. An act by an institution is, therefore, both the product of the collective and of specific individuals. Because of the hierarchical nature of military institutions, most often we perceive implementing policy as a simple act of transmission: policies are made at the top and carried out by legions of individual soldiers, sailors or aircrew. However, institutional decision-making is actually much more complicated than this simple model would suggest. Where any institution (in this case NATO, but equally the European Union, or a national government) is involved in the recourse to armed force, there are important moral choices which individuals at the core of the institution – and only at the core – must consider. It is easy to see the role of individual choice at this level, but it is equally true that these leaders are so central and their choices affect their subordinates so completely, that it is sensible to consider their collective decisions as the decisions of the institution per se. Thus, through its leaders, the decision-making organs of an institution commit the institution as a whole. The classic example, of course, is whether or not to commit the organization to war at all. There are other important choices and actions, however, that individuals at lower levels are responsible for, both as moral agents in themselves and as agents of the institution. As individual moral agents, military personnel should make decisions about how to fight humanely, and whether to follow questionable or improper orders. As agents of the institution they instantiate orders, sort, and prioritize new information, and advise core decisionmakers of the implications of their directives. Thus, if NATO as a decision-making institution cuts itself off from the experience and expertise of its active military personnel at any level, it will be less able to make informed moral choices. If it officially discourages its agents from considering the moral implications of their individual behaviour, and from passing on advice based on their moral and military competence, the organization as a whole will be more likely to act collectively in ways that do not stand up to moral scrutiny. If the institution collectively does not take the moral agency of its individual participants seriously, it not only blinds itself in critical ways, but also teaches individuals who act on its behalf that they should not hold themselves responsible for moral consequences of actions within their personal control. There is, of course, another kind of mistake that can be made by officers and other personnel: especially in the field, they can make improper choices in the heat of the moment without direction. Serious blunders as well as atrocities can come from insufficient control being exerted from the centre. In this chapter we are not advocating anything

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like a free-for-all, where civilian leaders simply unleash ‘the dogs of war’. Instead, we are proposing a return to a more balanced approach where both institutions as collectives and their component members are recognized as moral agents and are able to discharge their distinct but reciprocal duties. In this chapter, we take as our starting point that NATO is an institution that has important deliberative functions, can be said to bear specific duties, and can reasonably be held to account for its actions. (In other words, we accept that NATO qualifies as a moral agent according to the criteria outlined by Toni Erskine in Chapter 1.) But we will emphasize the accompanying point that independent yet complementary deliberative functions nevertheless remain in the possession of those individuals who act in its name.2 It is this distinction that is being increasingly blurred by current practices – those referred to under the label ‘micro-management’ – and this blurring has serious ethical repercussions for the use of armed force.3 Micro-management is an important subject for analysis partly because it is held to undermine military professionalism. But for the purposes of this chapter, the significance of micro-management is that it illustrates a striking and debilitating paradox with regard to NATO’s capacity to exercise moral agency. For a variety of reasons – political, economic, electoral, technological, and even moral – we see institutions such as NATO constraining the autonomy of soldiers. Yet, the freedom of individual soldiers to make certain decisions is a crucial component of a complex political institution’s ability to respond to ethical guidelines where the conduct of military operations is concerned. If the agents of the institution do not have enough autonomy to question decisions made higher up the line, and decision-makers at the policy level do not fully comprehend important moral implications of their decisions on technical grounds, then the institution as a whole will not make the best decisions of which it is capable. After elaborating on the practice of micro-management, and exploring how it affects military operations, we outline the substance and significance of these allegations by considering the ethical implications of micro-management in the context of the just war theory that NATO’s leaders have been so willing recently to invoke.

NATO: the transformed alliance? One of the features of NATO’s post-Cold War reorientation has been the organization’s acquisition of an extended moral mandate. NATO began

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the 1990s as a collective defence alliance, largely preoccupied with ‘hard’ military issues of threats, capabilities, and defence budgets. For some observers, the end of the Cold War should have meant the end of NATO, since the geopolitical context in which the alliance had been created and employed plainly no longer obtained. But the development of NATO in the 1990s showed the obituary to have been premature, if not wrong. As the decade progressed, NATO’s scope for action was broadened to include an additional range of military tasks that in the Cold War years would have been considered peripheral distractions. During their summit meeting in Washington in April 1999, the alliance’s leaders congratulated themselves for having shaped a new Alliance to meet the challenges of the future. This new Alliance would be larger, more capable and more flexible, committed to collective defence and able to undertake new missions including contributing to effective conflict prevention and engaging actively in crisis management, including crisis response operations. One notable feature of NATO’s post-Cold War programme for self-preservation was the way in which the alliance gradually developed a more explicitly moral language about its purposes and practices. This is not to say that the early NATO was a stranger to the language of morality, norms, and values. The alliance’s founding Washington Treaty of 1949 describes a Euro-Atlantic community of states set in a framework of peace and security, freedom, democracy, individual liberty, and the rule of law.4 In the spirit of the times, the new alliance would provide a space (defended against the West’s communist/totalitarian adversary) for these values to be nurtured.5 That said, NATO’s interest and expertise lay less with explicit promotion of ethical concerns than with the more practical dimensions of its adversarial relationship with the Soviet Union and the Warsaw Treaty Organization. But after the Cold War, as the threat of territorial aggression receded, NATO began to use language suggesting a more dynamic perspective. Repression, economic failure, and even human rights abuses could all indirectly affect the security and stability of NATO members through refugee flows, environmental crises, and the like.6 By the end of the 1990s, NATO’s moral language had acquired an even more assertive tone, as the alliance’s leaders made a more direct – even causal – connection between abuse of NATO’s founding values and the organization’s current duties. NATO’s handling of the Kosovo crisis in late 1998 and early 1999 gave the impression that a threat to the alliance’s core values, rather than to its territory or security interests (narrowly and traditionally defined), could now justify a call to arms.

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Thus, in early 1999, NATO’s official spokesman argued that ‘[t]he maintenance of the democratic order in the Euro-Atlantic area has replaced resisting the Soviet threat as the main rationale for Alliance defence policy’.7 While the air campaign against Serbia was underway, US Secretary of State Madeleine Albright frequently emphasized ethical roots for NATO action. ‘We are resolute because it is in our interests and it is right, to stop the ethnic cleansing’.8 ‘NATO is responding forcefully to the assault on fundamental human values.’9 ‘Because our cause is just, we are united.’10 Shortly after the suspension of the air campaign on 10 June, Albright claimed that ‘[i]n today’s world of deadly and mobile dangers, gross violations of human rights are everyone’s business’.11 NATO’s Secretary General, George Robertson, also argued that NATO’s cause was just: ‘[i]n responding to the Kosovo crisis, the Alliance has sent a strong signal that it will defend the basic values of the Atlantic community: liberty, democracy, human rights and the rule of law’.12 Months later, Robertson observed that while public and media attention might move away from Kosovo to some other crisis or event, NATO would have to ‘keep a focus on what it is we were fighting for there, and that was for decency, an end to the violence and ethnic cleansing, and the rebuilding of a society based on tolerance inside that little beating heart of the Balkans’.13 In short, NATO had begun to define itself much more explicitly as a moral actor – one with forcefully articulated (if rather broadly defined) duties to uphold in the international arena. We will now turn to the question of how this moral language is manifested in military practice, and how too much political control over operations makes it more difficult for an organization to act on its moral mandate. NATO’s operations in and around Kosovo in 1999 offer a good framework for such a discussion.

Micro-management of military operations The planning and conduct of NATO’s Kosovo operation remain controversial. In particular, critics question the heavy emphasis on allied air power. Even many supporters of the moral desirability of intervention contend that this strategy produced unnecessarily high civilian casualties, while reducing military effectiveness on the ground. It therefore becomes important to ask who made the decision to rely on air power, and what their reasons were. These last questions preface the claim that Kosovo was an example of the tendency for military operations to be micro-managed, resulting in NATO’s ‘guns’ being ‘spiked’.14 Of particular concern here is the issue of whether NATO’S formal deliberative

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organs accepted the strategy as a result of faulty military advice, or whether NATO’s central leadership directed the military to act accordingly. To the extent that the leaders at the core determined key aspects of even day-to-day tactical decisions without understanding the consequences, they were guilty of micro-management. So, too, by ignoring the moral responsibility of component individuals, they deprived the organization as a whole of expertise that could have alerted it to the real moral costs of the strategy. There is some disagreement as to whether micro-management occurred during the Kosovo Campaign. If micro-management can be closely defined as the requirement for target-by-target approval before every air attack or tactical operation on the ground, senior NATO officials and military officers have argued that it did not take place during the Kosovo operation. Sir John Goulden, Britain’s ambassador to NATO, subsequently reported that: ‘Micro-management did not occur at any stage. [The North Atlantic Council] cleared targets generically. We never sat in judgement on an individual target.’15 There was, however, at minimum, a widespread sense of institutional interference in military matters on the ground, reflected in the common military usage of such terms as ‘radical casualty aversion’, ‘the body-bag syndrome’, ‘total force protection’, and ‘reach down’.16 So, too, the operation shows the complexity of institutional agency when individuals acting on behalf of an international organization also report directly to a national government. For example, Britain’s Chief of Joint Operations denied micro-management, but referred to a targeting directive that ‘described to me the sort of targets that UK forces were allowed to attack, the ones that we were not allowed to attack, the degree of collateral damage that we should seek to avoid, the risks to civilians and many other factors like that, which constrained, in essence, what targets, generated by NATO, UK forces could accept’.17 Elsewhere in the same House of Commons report, it was noted that given ‘the failure fully to suppress Serbian air defences, combined with the overwhelming political requirement to minimize the risk of casualties [among bomber crews], UK pilots were unable to exercise their highly prized low-flying skills’.18 The desire to exert control from the centre comes from several interconnected sources: technological, political, and humanitarian. The technological component suggests that advances in communications, and intelligence gathering and collation, have greatly enhanced NATO’s capacity, at the institutional level, to intervene in decision-making on the ground. A real-time data link between a surveillance aircraft and a

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national capital not only provides the decision-making bodies of NATO and its member states with high-quality intelligence, it also invites comment and instruction that can return to the operational theatre from these centres just as rapidly. Technologically, the decision-making authorities within NATO had the ability to comment upon and direct military activity, even to the extent of cutting out one or more levels of the military’s strategic-operational-tactical hierarchy. Technology in another guise – precision-guided munitions – has led to what might be termed structural micro-management, in the form of the political and public expectation that ‘collateral damage’ can and must be minimized if not excluded altogether.19 The impulse to micro-manage also stems from the well-documented and almost overwhelming presence in conflict situations of the international media (accredited and otherwise) with very sophisticated means of communication. Their presence introduces another realm of real-time debate that does not merely enable institutional involvement in the conduct of the campaign, but insists upon it.20 Political debate on the virtues of a war is of course not new. Nevertheless, when the media show deaths and injuries of combatants so vividly and immediately, it gives military institutions an especially urgent reason to try to shape what their audiences see and hear. The impulse towards hyper-control of military casualties was reinforced by the US experience in Somalia. For some commentators, what best characterized and explained the Kosovo operation was the preference for a low-risk application of armed force, with ground forces being held back and with targets being attacked by aircraft flying more safely at high altitude. The effects of risk- and casualty aversion on the military and moral conduct of operations are subjects of growing interest,21 not least because an operation which shifts all the risk of death and injury onto non-combatants can scarcely be called humanitarian. The only escape from this dilemma would seem to lie in the context of the intriguing but as yet oxymoronic prospect of a genuinely ‘painless war’.

Micro-management: the moral hazard That war cannot be painless, even if the cause is ‘good’, is the core of Western just war theory. In its modern, secularized form, just war theory offers ‘a defensible middle ground between pacifism and realism’,22 a set of laws and customs from which to begin the project of making war less inhumane. It would not be an exaggeration to describe just war theory as among the most challenging of ethical frameworks, insofar as it

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represents the meeting of the moral and the real and insists that choices be made in the most demanding, frightening, and dangerous of human environments. Yet, there are more compelling reasons for drawing upon just war thinking when considering NATO’s performance as a moral agent. Because the just war tradition has always had to deal with ambiguities of individual action in a collective enterprise, the theory yields important insights about the relationship between organization and individual which are key to understanding the nature of NATO’s collective capacity to make moral decisions. If NATO is publicly concerned to be seen to be fighting with justice on its side, then it is as well to remember that fighting justly involves the conduct of war, not just its motives. In Just and Unjust Wars, Michael Walzer argues that jus ad bellum and jus in bello are ‘logically independent’.23 While it would certainly be possible in war to satisfy just one or other set of criteria – by fighting an unjust war according to the rules of jus in bello, or by satisfying jus ad bellum but then fighting disproportionately and without discrimination – moral evaluation of warfare cannot be fully represented in either dimension. ‘The just war tradition’, notes A. J. Coates, ‘upholds the moral determination of both the recourse to war and the conduct of war: the jus ad bellum and the jus in bello carry equal weight in that tradition’.24 Walzer makes a related point when he refers to ‘the dualism of jus ad bellum and jus in bello’.25 Jus in bello is, therefore, a vital component of justice in warfare. And the principal agent for jus in bello is the individual soldier. What is essential, then, if institutions such as NATO are to claim convincingly to fight a just war is that moral decision-making, moral judgements (and even mistakes) are allowed to be made ‘on the ground’. Walzer is right to insist that soldiers should be ‘responsible for what they do’,26 for their decisions and errors, for their observation of the laws of war, and of course for any crimes ‘against the conscience of mankind’. Without this sense of responsibility, the norms of jus in bello (and hence of just war) would be mere expectations, to be discarded at the first indication of ‘military necessity’. But this understanding of responsibility is largely prohibitive and is surely too narrow. By this view, the soldier is a potential (perhaps even actual) moral hazard, to be constrained and regulated in the actions he may take and – when appropriate – to be punished for any wickedness. But if the soldier is a moral hazard, he is also, at least as far as just war thinking is concerned, a vehicle for the moral constraining of the conduct of warfare, whether at the policy level or in the field. It is, we have said, individual soldiers who have the greatest responsibility for introducing the moral component

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into the conduct of warfare. Soldiers must be permitted and encouraged to carry out this function, and it is the responsibility of institutions such as NATO to secure this freedom of judgement, decision, and action. Particularly after the experiences of the twentieth century, no military person or organization would reasonably try to argue that the individual soldier should be allowed to ‘get on with his job’ in a specially constructed, values-free environment. The Nuremberg trials of Nazi war criminals established the inadmissibility of ‘acting under orders’ as a plea of mitigation. In other words, the Nuremberg trials established the importance of recognizing the soldier as a moral agent. International humanitarian law (or the laws of armed conflict) and the notion of ‘rules of engagement’ were developed during the twentieth century. Military people at all levels have become familiar with these and many other moral constraints upon their behaviour and, more to the point, accept that their actions should be so constrained. The individual soldier is and should be informed, guided, and constrained by moral codes. But to acknowledge in this way the moral status of individual soldiers prompts some difficult questions. How much moral autonomy should the individual soldier have? Are soldiers, as we have depicted them, entitled to ignore the moral constraints on local, tactical behaviour, either because they disagree profoundly with the ethical argument for going to war, or because they feel empowered and inspired by the quality of the justification to ignore one or two rules at the periphery? Are soldiers entitled to special respect, deference, and latitude as experts in the use of armed force and its ethical dimension? And, conversely, are institutional actors, such as NATO, entitled to suppose that, having thought hard about their reasons for ordering soldiers to fight, they have acquired the right to comment upon and influence the precise conduct of the military campaign they have initiated? Just war theory offers answers to questions of this sort. But these questions remain, nevertheless, obvious manifestations of the problem of distinguishing between the duties of the institution and the individual in the context of war. The practice of micro-management, as we have argued, takes too little account of the duties of the individual agent. What is needed is an understanding that responsibilities must be ascribed across the spectrum of institutional and individual actors – from NATO and its constitutive governments down to the individual soldier. The soldier, whether in the field or at headquarters, is the military agent without whom NATO would have little practical power and influence. But it is also essential to appreciate that the individual soldier is a moral agent who is an important vehicle for the constraint of warfare. In other words, the extent

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to which war can be made more moral – or less immoral – must be a direct function of the involvement in the processes of reflection and decision by the educated, morally aware soldier.

The NATO Kosovo Campaign and micro-management In the fall of 1998, many outside observers began to believe that Slobodan Milosevic’s Yugoslavia was poised to begin ‘ethnic cleansing’ of ethnic Albanians in the province of Kosovo.27 Although Kosovar nationalists had failed in their attempt to gain independence from Yugoslavia in 1992, the Kosovo Liberation Army (KLA) continued to agitate and, especially after 1995, to target government offices, police stations, and other sites they linked to Serb rule. The government’s response was harsh, and there were ominous signs that more was being planned. In the fall of 1998, the UN High Commissioner for Refugees declared that 200 000 civilians had been driven from their homes in Kosovo, and up to 60 000 were living in the open without shelter.28 Milosovic also replaced as commander of Serb forces a general who was a known opponent of all ethnic cleansing with one who had been implicated in the earlier atrocities. Although Milosevic withdrew 4000 ‘special police’ from Kosovo in November 1998 under explicit threat of UN approved NATO bombing, brutal behaviour started cropping up again almost immediately. The worst incident was a massacre of 45 ethnic Albanians near the village of Racak in January 1999. In the face of photographs and eye-witness accounts of dead men, women, and children, Milosevic claimed that the dead were merely terrorists whose bodies had been arranged for the cameras.29 In February 1999, some 300 tanks and 40 000 Yugoslav army and special police troops hovered in or near the Kosovo border. This represented about one-third of Yugoslavia’s total armed forces.30 Whether the Serb military and their semi-official police and militia colleagues could have been induced by NATO, without the resort to armed force, to stay within internationally acceptable guidelines in their treatment of rebellious Kosovo Albanians is a very controversial question. How far the Serbs would have gone if NATO had not intervened is also hotly debated. It nevertheless remains true that the signs of danger were extremely troubling and that NATO would not have been able to act in time to protect thousands of Kosovars if it had waited until firm evidence of full-scale genocide was available. The question we are examining here, however, is not whether NATO properly fulfilled its ethical obligations as a collective actor in deciding whether to go to war. Instead

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we are asking whether NATO’s formal deliberative organs kept key military decisions in the 78 days of the air war so firmly in their own hands that they short-circuited their organization’s ability to make the morally best decisions available.

NATO’s decisions NATO as an organization made three key decisions that had significant consequences for the means by which the Kosovo campaign could be conducted – consequences that were not intended and that NATO was not fully prepared to appreciate. These three decisions were manifest in the public announcement that NATO would not send ground forces, in its emphasis on bombing from 15 000 feet, especially in the first six weeks of the war, and in the degree of control over targeting decisions allowed to member governments.31 The decision to refrain from a ground campaign had the advantage that it would keep casualties lower and would assure both NATO allies and the Serbs that the United States would not unexpectedly pull out. On the other hand, letting Milosevic know that NATO would not use ground troops gave the already determined leader even more incentive to wait out the air war and hope for the alliance to fall apart. Bombing from 15 000 feet also contributed to the safety of NATO personnel since it provided almost complete protection from Serb anti-aircraft fire. At the same time, doing so magnified the difficulties of trying to force Milosevic to surrender without ground troops. So, too, the precisionguided munitions they then utilized to a much greater degree than even in the Persian Gulf War hit their targets – but they are not cost-effective for small-scale objects, such as tanks. The high altitude at which they were flying also meant that pilots had an extremely limited view of the ground. The combination made it very difficult for individual NATO pilots to actually find and destroy pockets of hidden Serb military forces, and sometimes led to mistaking civilian activities for Serb military movements. It also meant that NATO pilots could not directly protect groups of endangered civilians from Serb forces in real time. And, finally, although vetoing particular targets or types of targets offered some protection to non-combatants and did positively affect public opinion in NATO countries, it sometimes altered in critical ways the carefully integrated plans drawn up by the individual military personnel farther down the chain of command. Critics contend that these three decisions significantly weakened the effectiveness of the war effort and raised human costs to both Kosovar

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and Serb civilians. The question of whether a less efficient but just war is a more ethical war is a complex issue that we will not go into here. But to the extent that the means chosen actually increased the dangers to non-combatants, this represents a genuine moral problem for the NATO campaign. The result may have been a moral problem, but were the decisions examples of micro-management? That is, did the institutions involved in the Kosovo Campaign (NATO and its constitutive states) make technical military decisions without adequate advice from individual military personnel ‘on the ground’ and without fully understanding their consequences? Did they make day-to-day choices in military matters? We think the answer is that NATO and its member governments did engage in micro-management, and that the repercussions of this practice would have been far worse in the end if NATO had not been so powerful, compared with what remained of the state of Yugoslavia after the civil wars of the 1990s. Both European and American governments were wary of sending troops. Both worried about a potential backlash at home, but for somewhat different reasons. Europeans were concerned about being left with what they feared would be an unfair share of a subsequent peacekeeping mission.32 They also feared that if Americans were killed, it would call the entire mission into question, as in Somalia only a few years before. President Clinton, for his part, faced a hostile Congress and a public who he believed would not accept the large numbers of American casualties that a ground campaign would almost certainly produce. Secretary of Defense Cohen later argued that he, too, ‘saw no consensus or support for it in Congress. It was hard enough going up to the Hill even talking about a peacekeeping mission at that time’.33 The administration feared that Congress might even cut off funding for any military mission to Kosovo if ground troops were not ruled out.34 Moreover, although the signs of danger to civilians in Kosovo were very troubling, these had not yet reached the point where either ethnic cleansing or genocide was clearly underway. By the middle of May, the Clinton administration came to the point where they probably would have accepted a land war if the alternative was complete failure.35 They unanimously insisted, however, that the initial decision to eschew ground troops was the key to international consensus and the political will to proceed.36 Insisting on tactics such as flying at 15 000 feet to reduce or prevent casualties had similar political underpinnings. The political pressure for national control over targeting also stemmed from the roots we have described for micro-management: political caution from conducting war under so much scrutiny. The issue most

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often cited in negative reactions was potential collateral harm to Serb civilians near economic and political infrastructure targets. What allies such as France, Spain, and Italy reportedly feared was that high civilian casualties would turn domestic electorates against the operation.37

An advisory deficit In judging micro-management the issue is not simply whether a decision at the institutional level has military consequences on the ground. All the NATO countries endorse a version of the liberal principle of political control of the military that is likely to produce this effect to some extent in the context of specific operations. They are democracies and the job of the politician in a democracy is theoretically to make sure the will of the people is respected. There are thus supposed to be political decisions that will have military consequences. Appropriate institutional control becomes micro-management, however, when decision-makers are not equipped to see – and do not ask about – important technical implications of their choices. Micro-management is particularly serious when those technical consequences, in turn, have important tertiary political, economic, or ethical effects in their own right. In the case of the air war in Kosovo, NATO’s decision to publicly announce that the organization would eschew ground troops was made without significant consultation with those military personnel who would have to carry out such decisions – and even without consultation with civilian experts on the staffs of all the member governments. These individuals did not initiate, approve, or recommend the publicity – and consistently regarded it as a great mistake. Deciding that ground troops would be too costly in political terms is a decision that arguably is within the purview of NATO’s highest formal and informal decision-making organs and those of its constitutive states. However, as advisors no doubt later told Clinton and Blair, making the pledge so visible heartened Serbia and may well have suggested that it did not have anything very serious to worry about. Serb Forces could then afford to turn their primary attention to ethnic cleansing.38 Certainly we know that the first thing that happened once the air war commenced was an increase in the attacks on Kosovo’s ethnic Albanians. Most of the political benefits that did come from a public ban – not least a comfort zone for allies about the solidity of U.S. intentions – could have been achieved or even enhanced by public ambiguity and by offering private assurances to national leaders at home and abroad that a ground war would probably prove unnecessary in the long run.

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Depending heavily on high-flying aircraft was not a policy in itself that could have occurred to NATO and its component governments without some advice from individual military personnel who would operationalize the decisions through concrete planning and action. Nevertheless, we still believe that it was an example of institutional micro-management because providing the option stemmed from implacable political demands on NATO and its component governments to minimize casualties. Even during the immediate aftermath of the conflict, military professionals anonymously complained about sacrificing their ability to complete their tasks to such a radical version of casualty aversion.39 Good commanders and their political superiors should of course try to keep casualties low. In the Kosovo campaign, however, this laudable goal became so central that it compromised the NATO air force’s ability to protect the ethnic Albanians and to ‘win’ the war. As one senior policy maker in Washington said, ‘We have gotten into this mentality where we feel the American public will cut and run if we have any casualties, and therefore we have to operate in a manner that absolutely minimizes military losses.’40 At the same time, officials never wavered from the contention that they were protecting the Kosovars from Milosevic’s men. Thus, either NATO was knowingly sacrificing Kosovar civilians for political motives, or the institution was guilty of making practical military decisions whose implications they did not fully understand, that is, they were engaged in micromanagement. It is much harder to argue that NATO acted within its proper institutional role in regard to the degree of intervention in targeting decisions. This is also the area that has received the most subsequent public criticism from NATO military personnel. According to the US Congressional Research Service: It was also clear that Air Force generals would have preferred to receive political guidance on the effects desired by bombing, and then select appropriate targets and timing, rather than simply servicing an approved list of targets. For maximum effect, a number of targets might be attacked near-simultaneously; a political veto of just a few of those targets could disrupt the whole plan. Air Force generals were allowed to make their case for preferred strategies, but accepted political judgements.41 Reportedly, the amount and kind of political intervention varied by country. We have already mentioned British government oversight of

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categories of targets. Secretary of Defense Cohen testified that President Clinton actually reviewed target lists. The French government acknowledged vetoing targets in heavily populated areas. And other ‘governments did from time-to-time intercede and urgently request postponement or withdrawal of selected targets; their wishes were usually – but not always – respected’.42

Conclusion: micro-management, the individual soldier, and NATO We have argued above that NATO and its component governments made important decisions whose military consequences they did not fully understand. The particular choices that were made hurt Kosovar civilians, the very people the campaign was designed to protect. What is less clear is how a more balanced emphasis on individual military personnel as moral agents might have made a difference in the outcome. The most significant difference it might have made is that it would have encouraged those who did understand the ethical consequences of technical decisions to speak up, to ask questions. Here we are talking about individual military personnel in the field and at NATO headquarters. If institutions treat military personnel as mere means to military ends, rather than moral agents in their own right, there is no one who can raise this particular kind of issue. Those who decide, do not understand; those who understand do not decide. The problem with micro-management is that it cuts an important safeguard out of an institutional system. We do not advocate substituting the judgement of individual soldiers for the collective decision-making of NATO and its component governments. We do recommend that military personnel continue to receive training in ethics of war, and be encouraged to exercise moral judgements and to bring up their conclusions to their superiors, both civilian and military. This means that not only individual military experts at headquarters must advise their civilian chiefs, but that the actual practitioners of armed force – individual soldiers, sailors, and aircrew – be given more room to ensure that operational and tactical decisions, and choices of weapons and targets, are consistent with established international and national agreements, treaties, rules of engagement, and codes of conduct. These individuals make critical moral decisions. We need them to be moral agents par excellence. Both NATO and the governments on whose behalf these practitioners act are institutional moral agents, capable of collectively deliberating and acting in response to ethical constraints on the use of force.

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However, the individual practitioner is also a decision-maker in regard to his or her own acts of omission and commission. As an agent of an institution, individuals owe the organization their best judgement and feedback about the effects of decisions made further up the line. If the institution discourages them from doing anything but mechanically following orders, it is cutting itself off from the benefits of direct experience and expertise. It is also important to remember that military organizations are, in an important sense, what they do – and that in armed conflict the combat soldier, sailor, or air crew is the point of contact between the institution and the task. If the agents of the organization are not encouraged to also act as responsible individual moral agents, tragic mistakes can be made through institutional ignorance. Thus, for example, no matter how lucid, articulate, and persuasive the requirement for discrimination between military and civilian target, the ethic of discrimination is part idea and part act. Only the one who is acting at the moment of contact can judge whether a particular action falls within the purview of the requirements. If we do not encourage individuals to ask the right questions then institutions will blindly commit wrongful acts. The argument that we have advanced is that, for generally laudable reasons, institutional reluctance to respect the individual military advisor’s – or even soldier’s – deliberative domain has the effect of reducing the overall moral quotient of military operations. Our argument is emphatically not that the deliberation over military operations at the institutional level is misconceived and that generals or individual soldiers should be allowed to complete their task without interference from ‘above’. Individuals at all levels need ethical frameworks and guidance within which to work. But neither, conversely, do we argue that political and military leaders of NATO and other military institutions should become even more closely involved in the planning and conduct of military operations. Rather, we argue that the middle ground is being lost, and that in the process the possibility of morally constraining warfare is being challenged. Micro-management threatens to do away with the crucial, ethically enabling relationship between institutional and individual duties in the context of war.

Notes * An earlier version of this chapter was presented by Paul Cornish at the BISA/ISA Joint Special Workshop, ‘Can Institutions Have Morals?’, held at the University of Cambridge, 18–19 November 2000.

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3

4

A. Camus, ‘Neither Victims nor Executioners’, in D. P. Barash (ed.), A Reader in Peace Studies (Oxford University Press, 2000), pp. 181–3 (p. 182). In Chapter 1, p. 26, Erskine also makes the point that the recognition of institutional responsibilities does not negate (or allow the evasion of) the distinct responsibilities of individual actors. For a discussion of ‘micro-management’ and its implications, see P. Cornish, ‘Cry, “Havoc!” and Let Slip the Managers of War’: The Strategic, Military and Moral Hazards of Micro-Managed Warfare (NATO Research Fellowship 2000–2002, http://www.nato.int/acad/fellow/00-02/f00-02.htm). The Preamble to the April 1949 Washington Treaty: The Parties to this Treaty reaffirm their faith in the purposes and principles of the Charter of the United Nations and their desire to live in peace with all peoples and all governments. They are determined to safeguard the freedom, common heritage and civilization of their peoples, founded on the principles of democracy, individual liberty and the rule of law. They seek to promote stability and well-being in the North Atlantic area. They are resolved to unite their efforts for collective defence and for the preservation of peace and security. They therefore agree to this North Atlantic Treaty.

5

6 7 8 9 10 11 12 13 14

15 16

17

For the idea that the defence of territory can enable the pursuit and protection of other, substantive values, see R. L. Philips, ‘Is There an Ethic to NATO?’, Ethics & International Affairs, I (1987) 211–19 (p. 212). NATO, The Alliance’s Strategic Concept (Brussels: NATO, 1991), para. 10. J. Shea, ‘The Alliance’s New-Found Popularity’, Journal of the Royal United Services Institute, CXLIV 1 (1999) 8–13, 32 (p. 10). M. Albright, text of speech, Washington, 6 April 1999 (US Information Service, Official Text, 7 April 1999). M. Albright, text of speech, Washington, 14 April 1999 (US Information Service, Official Text, 15 April 1999). M. Albright, text of speech, Washington, 20 April 1999 (US Information Service, Official Text, 21 April 1999). M. Albright, ‘To Win the Peace’, Wall Street Journal (14 June 1999). J. Solana, ‘A Defining Moment for NATO: The Washington Summit Decisions and the Kosovo Crisis’, NATO Review, XLVII 2 (1999) 3–8 (p. 3). ‘General George and the EU paper tiger’, Sunday Times (30 January 2000). ‘NATO Politicians “Spiked our Guns”,’ Sunday Telegraph (5 March 2000). See also a British military view that ruling out the ground offensive was a ‘strategic mistake’ in ‘Ground War “Error”,’ The Times (24 March 2000). House of Commons, Lessons of Kosovo (London: HMSO, Select Committee on Defence, Fourteenth Report, October 2000), para. 95. ‘Force protection’ is a standard military procedure, referring to the security of bases and individuals, to enable operations to be carried out. ‘Total force protection’ takes the procedure to the extreme, such that physical and personal security is guaranteed; it is often observed that a very large proportion of US forces in Kosovo – perhaps as high as 50 per cent – have the job of protecting their colleagues. ‘Reach down’ is a loosely metaphorical reference to the hand of government reaching into the pilot’s cockpit and taking over the controls. House of Commons, Lessons of Kosovo, para. 95.

136 Paul Cornish and Frances V. Harbour 18 ‘Why Kosovo Bombs Missed Mark’, The Times (25 October 2000). 19 ‘Forces want Funds for “Safer” Weapons’, The Times (16 July 2001). 20 It has been reported anecdotally that when the 10 000-strong NATO-led Kosovo Force (KFOR) moved across the border into Kosovo in June 1999, it was accompanied by 2500 accredited media representatives; a soldier/media ratio of 4 : 1. 21 See F. Harbour and P. Cornish, ‘Planning for Casualties: Insights from World War II and Kosovo’, paper presented to the International Studies Association, Chicago, February 2001. 22 J. McMahan, ‘War and Peace’, in P. Singer (ed.), A Companion to Ethics (Oxford: Blackwell, 1991), p. 386. 23 M. Walzer, Just and Unjust Wars, 3rd edn (New York: Basic Books, 2000), p. 21. 24 A. J. Coates, The Ethics of War (Manchester: Manchester University Press, 1997), p. 98. 25 Walzer, p. 21, our emphasis. 26 Walzer, p. 40. 27 In bloody civil wars of the early 1990s, Serb-led forces in the breakaway Yugoslav republics of Slovenia, Croatia, and Bosnia-Herzegovina forced hundreds of thousands of civilians of the ‘wrong’ ethnic background out of their homes and their villages, deliberately killed non-combatants, and officially sanctioned rape. To be sure, Serb civilians experienced morally unacceptable violence as well. There were significant differences, however, in the number of incidents and, equally important, in the degree of central control and direction. Milosevic himself seems to have played a key role in directing the behaviour of Serb forces. 28 US Department of State, ‘Kosovo Timeline: Chronology of events 1989–1999 relating to the Crisis in Kosovo’, 21 May 1999. 29 E. Sciolino and E. Bronner, ‘The Decision to Bomb the Serbs’, New York Times (18 April 1999). 30 Sciolino and Bronner. 31 Eaker Colloquy on Aerospace Strategy, Requirements, and Forces held on 16 August 1999 in Washington, DC, titled Operation Allied Force: Strategy, Execution, Implications. 32 I. H. Daalder and M. E. O’Hanlon, Winning Ugly: NATO’s War to Save Kosovo (Washington, DC: Brookings Institution Press, 2000), pp. 72–4. 33 B. Graham, ‘Cohen Wrestles with a Mission Far Harder than Predicted’, Washington Post (11 April 1999); B. Graham, ‘Joint Chiefs Doubted Air Strategy’, Washington Post (5 April 1999). 34 Daalder and O’Hanlan, p. 97. 35 R. W. Apple Jr, ‘Nimble Security Juggler: Sandy Berger, The Strategist and Politician’, New York Times (25 August 1999). 36 Hearing of the Armed Services Committee, US Senate, 106th Congress, 1st session, 20 July 1999. 37 See, for example, M. Green, ‘France Says U.S. Sidestepped NATO in Kosovo’, Reuters, AOL News (11 November 1999). 38 P. E. Gallis, J. Kim, S. Bowman, E. F. Bruner, S. Woehrel, and S. D. Goldman, ‘Kosovo: Lessons Learned from Operation Allied Force’, P. E. Gallis, Coordinator, Congressional Research Service Report for Congress, Order

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39 40 41 42

Number RL30374 (Washington, DC: Congressional Research Service, 19 November 1999), p. 7. B. Graham, ‘War without “Sacrifice” Worries Warriors’, Washington Post (29 June 1999). Ibid. Gallis et al., p. 10. Ibid.

8 The Anti-Sweatshop Movement Constructing Corporate Moral Agency in the Global Apparel Industry Rebecca DeWinter*

Nike cuts off funds for 3 universities; schools claim firm is upset at their stance on labor practices Washington Post, 4 May 2000 As biggest business, Wal-Mart propels changes elsewhere New York Times, 22 October 2000 GAP meets in rural Tennessee, avoids usual protestors San Francisco Chronicle, 6 May 2000 Headlines on corporate activities in the global apparel industry indicate that it is a common practice to speak of apparel behemoths as if they were unitary actors. Nike, Wal-Mart, and GAP are said to behave in an intentional and rational manner by pursuing their primary interest of maximizing profits. Linked to this is a tendency to ascribe a set of rights and responsibilities to corporations. Although the content of that set is highly contested, there appears to be general agreement that the activities corporations are allowed to pursue and their accountability for production practices should somehow be delimited. Yet, at another level, it seems counterintuitive to view corporations as wholes that are separate from and greater than the individual human beings who constitute them and are tasked with making decisions and taking action on their behalf. This tension between thinking of the corporation as a unitary actor and thinking of it as a composition of individual actors is reflected in much of the writing on business ethics and corporate accountability. The manner in which the agency of corporations is conceptualized is 138

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significant to the extent that it shapes public expectations of appropriate corporate behaviour and influences the nature and scope of state regulation of global production practices, which in turn affect the situation of workers and the impact of production on the environment and communities. Both of these approaches to conceptualizing the agency of corporations are flawed. Each begins by defining a priori attributes of moral agency – usually characteristics associated with the moral agency of individuals, such as rationality and intentionality – from which a suitable set of rights and responsibilities is then derived. Yet, the two approaches differ on whether corporations qualify as full-fledged moral agents. This is because a distinction is made between agency – the ability to undertake directed action (something that can easily be ascribed to corporations) – and moral agency – the ability of an actor to recognize the outcomes of an action, to take responsibility for that action, and if necessary to adjust its behaviour accordingly (something less easily ascribed to the corporate whole than to specific individuals within the corporation). Neither approach understands moral agency as a social construct with no content prior to or outside of social historical processes. These processes reflect an ongoing contest over which actors qualify for what type of moral agency. In the case of the corporations, this is simply to say that they, like any other actor, have histories, and that over time shared understandings of what set of rights and responsibilities can be ascribed to them will change.1 When parallels between individual moral agency and corporate moral agency are drawn, this must be understood as merely one possible way of constructing the corporation as a specific kind of moral agent. Therefore, I argue that moral agency is best conceptualized as an effect of social-historical interactions that reflect processes through which the boundaries of an actor as a moral entity are drawn and justified. The relational approach I use starts from the premise that there is no pre-existing template for actorhood that can be applied to discern who would qualify for moral agency. My endeavour, therefore, is not to find and defend a best definition of collective moral agency, but rather to examine the current processes that are resulting in a contestation of received notions of corporate agency and the duties attributed to the corporate agent. I propose to do this by examining the impact of the current antisweatshop movement on the constitution of apparel manufacturers and retailers as moral agents. I view the effects of current debate concerning corporate social responsibility by focusing on how the corporation’s identity as a moral agent is socially constructed. The anti-sweatshop

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movement is exemplary in this respect because it is the branch of the corporate accountability movement that has been innovative in advocating for new forms of corporate regulation as well as successful in placing corporate social responsibility on the public agenda. The anti-sweatshop movement is a subset of actors and campaigns within the larger corporate accountability movement that aims to identify sweatshop conditions and to define and enforce labour standards within the global apparel industry. In doing so, the movement builds in part on received notions of collective corporate moral agency, but it also challenges those notions and uses them in new ways to contest the already existing boundaries of the corporate agent and to press its view that the corporation has duties towards a broad range of stakeholders such as workers, communities, and consumers. Through the use of rhetoric linking private economic transactions with international labour and human rights standards, the movement has brought attention to corporate practices that might otherwise have been considered unremarkable. It has also helped change the view that the corporation is an agent whose identity – and derivative rights and responsibilities – centres solely on its profit-making motives and its function as a creator of wealth. Instead, the corporation is coming to be understood as a collective moral agent, located within a specific set of historical relations with state and societal actors, and bearing the larger responsibility of contributing to social justice within the communities in which it produces. In the first part of this chapter, I describe the emergence of the antisweatshop movement and the restructuring of the global apparel industry in order to highlight the way in which the movement has framed its demands on the corporation.2 In the section thereafter, I expand on the movement’s role in constructing a contemporary form of corporate moral agency through the use of a relational approach, which understands the constitution of moral agency as a social–historical practice.

The emergence of the anti-sweatshop movement The anti-sweatshop movement represents a form of transnational advocacy network, described by Margaret Keck and Kathryn Sikkink in their book Activists Beyond Borders.3 Keck and Sikkink show how advocacy networks function as media of communication and exchange between activists across geographical borders. In their model, activists are linked by ideas and values expressed in specific campaigns. The campaigns are characterized by processes of issue construction and lead to the development of a shared discourse among campaign activists. Through the

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mobilization of information and resources, network activists create new frameworks of meaning that provide the basis for legitimating their collective action and contribute to ‘changing perceptions that both state and societal actors may have of their identities [and] interests’.4 This is in line with the relational view that actors are social configurations emerging out of social interactions. A key part of this process is the framing of campaign issues in a manner that constructs a ‘fit’ between new and old ideas.5 Specifically, by tapping into ‘rhetorical commonplaces’ – shared understandings of what things are and how they are meaningful – social configurations are made to resonate with a broad audience.6 This is because the shared understandings drawn upon are composed of general appeals and allusions that help to determine what a thing is, and also refer to a coherent set of arguments that legitimate and delegitimate certain actions. For example, as will be detailed below, the anti-sweatshop movement has tapped into rhetorical commonplaces codified in US and international law to justify corporate responsibility for upholding certain labour standards in their points of production. This section explores how activist mobilization around anti-sweatshop campaigns has drawn on rhetoric that has promoted a broad acceptance of expanded corporate duties based on notions of corporate social responsibility. The corporate accountability movement is a broad-based transnational network of actors that has mobilized to set and enforce standards for responsible business practices and to encourage companies to make themselves accountable for the effects of their operations on communities, workers, and the environment.7 The main participants in the movement are a loosely connected array of groups and individuals in the global North and South, ranging from established unions, human and labour rights groups, environmental groups, religious groups, consumer groups, investors, and trade associations, to students, universities, and mobilized citizenry. The movement emerged in the 1970s at the intersection of significant trends: the retreat of the welfare state and calls for deregulation and privatization of state functions; increased liberalization of trade and investment; a decline in union membership; increased public awareness of the influence and power of transnational corporations as a result of political scandals and cases of malpractice; and demands from the global South for a New International Economic Order.8 In the process of setting standards, the corporate accountability movement has drawn on US national labour, corporate, and environmental law, as well as internationally recognized standards, treaties, and declarations like the International Labor Organization (ILO) conventions,

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the Universal Declaration of Human Rights, and the Rio Declaration on Environment and Development. The rights that the anti-sweatshop movement incorporates in such instruments as codes of conduct are the core labour standards identified in ILO conventions, which include freedom of association, the right to collective bargaining, bans on child and forced labour, and minimum standards with respect to wages, working conditions, and health and safety. The referencing of US law and widely accepted international standards is one example of drawing on rhetorical commonplaces. This allows the newer language of corporate social responsibility to become familiar to a broad audience and makes it more likely that the goals of the movement will be attained. The targets of campaigns have been corporations, entire industries, consumers, and governments at the local, state, national, and international levels. The two main instruments used by the corporate accountability movement to push its agenda have been voluntary codes of conduct targeting corporations, and involvement in shaping trade initiatives and legislation through state channels. The movement has been innovative in using an array of tactics in its campaigns, including ones that target nonstate actors (such as consumers and investors through protests, boycotts, labelling, alternative trading organizations, shareholder resolutions, and socially responsible investment funds) and state actors (through lawsuits, legislation, and regulatory initiatives at all levels of governance). As of yet, attempts to link labour rights to trade initiatives and to pass legislation regulating global business practices have not proved very successful, as these measures often have no real teeth or are simply not enforced.9 Therefore, the anti-sweatshop movement has primarily resorted to pushing for the adoption of codes of conduct and the education of consumers through direct actions. The scripting, implementation, and monitoring of voluntary codes of conduct had been accomplished mostly by groups within the movement, but in 1996 the US government stepped in to offer a space for these actors to meet in dialogue, through the White House Apparel Industry Partnership. The emergence of the anti-sweatshop movement and the manner in which it frames its campaigns and demands must be understood in the context of significant changes in the global apparel industry in the past three decades. US apparel and textile manufacturers have traditionally enjoyed a high level of protection under the Multi-Fiber Agreement (MFA), which places them out of the reach of the General Agreement on Tariffs and Trade and sets limits on textile and apparel imports and exports through bilateral negotiations. Yet despite this, both industries

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have experienced increasing levels of concentration within the manufacturing and retailing sectors in the wake of bankruptcies, a steady decline in employment, and a significant drop in the levels of consumption of American-made textiles and garments.10 The MFA, in conjunction with the North American Free Trade Association and the Caribbean Basin Initiative, actually served to improve the competitive strength of manufacturers in developing regions by allowing them to increase the sophistication of their products as well as their manufacturing and input sourcing techniques in response to differential trading privileges.11 As a result, regional models of competition have emerged in East Asia, Mexico, and the Caribbean Basin, with governments in those regions encouraging foreign investment through the creation of export processing zones offering lax labour and environmental standards, tax breaks, and exemptions from customs duties. Anti-sweatshop movement activists interpret the impact of the restructuring of the apparel industry using the rhetoric of antiglobalization activism. In this account, there is nothing inexorable about the current form of neoliberal globalization; it is, in fact, a creation of governments – a creation activists think can be rolled back. Governments, according to this view, enable corporations to move about with ease in search of locations that offer the highest rates of return on their investments. This leads to a ‘race to the bottom’ in labour standards as governments in developing regions compete with one another to offer an attractive investment climate by keeping labour markets relatively unregulated and wages low. As a result, apparel workers in developed regions, who have successfully fought for better work conditions, are losing their jobs as companies relocate manufacturing facilities abroad. Governments could step in and regulate corporate practices that harm workers, but choose not to do so because they are beholden to the interests of manufacturers. By framing neoliberal globalization as an intentional creation of governmental and corporate elites, rather than the inexorable outcome of global integration, the movement’s agenda to mitigate the effects of the restructuring of the apparel industry on workers becomes necessary and even desirable. US apparel retailers and manufacturers have acted as lead firms in shaping these regional models of competition and have taken advantage of the profits to be had from setting up decentralized global production networks characterized by a complex web of subcontractor relationships. This global structure of the apparel industry has been described as ‘buyer-driven commodity chains’12 and ‘lean retailing’.13

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Both terms indicate that the industry is trying to respond rapidly to changing consumer demands for a wide array of diversified products and shorter product life cycles by using information and communication technologies to track purchasing patterns and convey the data down the production chain. The need to respond quickly to changing consumer preferences has been a key point of leverage for the antisweatshop movement. By keeping concerned consumers informed about manufacturing conditions, the movement can influence their purchasing habits – to the detriment of apparel manufacturers deemed to be violating responsible workplace standards. The need for a rapid-response production system has shifted the burden from retailers, who no longer need to maintain large inventories for which there may be an inadequate demand, to suppliers, who must find ways of producing and delivering garments quickly and cheaply to the retailers’ specifications. This puts tremendous pressure on the lower ends of the production chain to minimize input costs, which in the apparel industry is primarily labour. The apparel industry is especially prone to sweatshop conditions, because profits can be made through downward pressure on wages. Also, productivity cannot be as readily increased through investment in capital equipment because of the nature of garment production, which requires extensive detail work that cannot be accomplished with dedicated machinery. Retailers and brand-name manufacturers maintain the high valueadded marketing and design stages of production in the United States, while divesting themselves of production facilities and tapping into complex tiered networks of subcontractors in developing regions. As Naomi Klein points out, companies no longer produce products and advertise them; rather they buy finished products and brand them.14 Companies thereby attempt to create a distance between their brand image and the ‘dirty side’ of actual production.15 This restructuring of the commodity chain has provided another point of leverage to the anti-sweatshop movement, giving activists the potential to threaten sensitive brand images by re-establishing the direct link between the images created in the United States and the conditions in production facilities in the South. This is possible because retailers and manufacturers, despite the decentralization of production, still maintain significant control over how, when, and where garments are produced, and how much profit accrues at each stage of the production chain.16 The antisweatshop movement uses the depiction of working conditions within subcontractors as visual confirmation of the legitimacy of its campaigns. Excessively long workdays, low wages, unsafe work conditions, restrictions

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on organizing, and physical and psychological harassment are portrayed as the norm for the predominantly female workforce. A number of exposés in the mid-1990s marked the beginning of a broad public awareness of sweatshop issues and brought a surge in the activities of the anti-sweatshop movement.17 In 1995, GAP was discovered to be using a contractor in El Salvador that had threatened and fired workers for attempting to organize. That same year a raid on a garment factory in El Monte, California, revealed that 71 Thai immigrants had been virtually held captive behind barbed wire and forced to work approximately 84 hours a week for $1.60 an hour making clothes for such retail giants as Macy’s and Filene’s. A year later a National Labor Committee exposé revealed that celebrity Kathie Lee Gifford’s clothing line at Wal-Mart was made using child labour in Honduran sweatshops. Reeling from these scandals, yet reluctant to accept the codes of conduct formulated and monitored by nongovernmental organizations aligned with the movement, apparel manufacturers responded by scripting their own self-supervised codes. Numerous manufacturers, such as Nike, Reebok, Wal-Mart, K-Mart, GAP, and Levi’s (which in 1991 was the first apparel manufacturer to adopt a code), now have codes in place regulating the work conditions within their subcontractors. This willingness to accept responsibility for work conditions in non-owned facilities marked a significant shift in the boundaries of the apparel corporation. A number of apparel manufacturers have also established departments and positions within their firms to deal with issues arising from their global production. For example, Nike now has a vice-president of corporate responsibility and Reebok has a vice-president for human rights. In 1996, the US government became involved in supporting voluntarism as a means of regulating global workplace conditions. After the aforementioned media exposés, and in the wake of pressure on the Clinton administration to curtail granting Most Favoured Nation status to China (one of the largest apparel exporters to the United States), the government began an elaborate campaign to develop a voluntary code of conduct for the global apparel and footwear industry acceptable to all relevant stakeholders. The White House Apparel Industry Partnership brought together big apparel manufacturers such as Liz Claiborne, Reebok and Nike, and human and labour rights groups including the International Labor Rights Fund, the Interfaith Center on Corporate Responsibility (ICCR), representatives from the Union of Needletrades, Industrial and Textile Employees (UNITE), and the Retail Wholesale Department Store Union, AFL-CIO. Those involved have agreed to a Workplace Code of Conduct and Principles of Monitoring and have

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established the Fair Labor Association (FLA) to accredit organizations to independently supervise the implementation and monitoring of the code. The US government has provided a large portion of the initial funding. UNITE, AFL-CIO, and the ICCR withdrew from the process and refused to endorse the code because of the lack of living wage stipulations, absence of restrictions on manufacturing in countries not permitting unions, and limited involvement of local NGOs in monitoring.18 Nevertheless, the involvement of the US government lent a significant degree of credibility and legitimacy to the demands of the movement and aided in pushing corporations into a more compliant position by increasing their willingness to cooperate with certain anti-sweatshop factions. The sharp criticisms of the FLA within certain quarters of the movement spurred the emergence in Fall 1997 of a nationwide network of student anti-sweatshop groups, which by Summer 1998 had formed the United Students Against Sweatshops (USAS). The students, together with a number of the groups that dropped out of the FLA, created an alternative framework to the FLA in the form of the Workers Rights Consortium (WRC), which regulates the production of collegiate licensed apparel. The WRC, which does not allow any corporate involvement in its governing structures, embodies more stringent labour standards than the FLA. Students across the country were remarkably successful, through all types of direct action, in forcing a number of their universities to join the WRC, despite general support among administrations for the FLA.19 The student involvement in nationwide USAS chapters, which has been described as the biggest surge in student activism since the anti-apartheid era, had two significant impacts on the ability of the anti-sweatshop movement to make demands on corporate behaviour. First, apparel manufacturers were concerned about not only an immediate drop in sales, but also the possibility of losing a large number of youth as potential future consumers. Second, the splitting of the movement into a faction willing to work with corporations and a more radical wing unwilling to hold dialogues with corporations appears to have pushed corporations into accepting some demands of the movement, such as the public disclosure of factory locations. Corporations likely feared that displaying an unwillingness to compromise on at least some of the movement’s agenda would lead to the more radical wing gaining a greater public voice.

The constitution of corporate moral agency The preceding discussion of the emergence of the anti-sweatshop movement indicates the processes that have played into the movement’s

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attempts to expand the range of corporate responsibilities. The restructuring of the apparel industry may foster sweatshop conditions, but at the same time the emphasis on lean retailing has increased the importance of consumers. The anti-sweatshop movement can use consumers as a means to put pressure on companies. Furthermore, by depicting the global structure of the apparel industry as an outcome of state and corporate complicity, the anti-sweatshop movement denies the inevitability of the form globalization takes and legitimates demands for corporate regulation. Apparel retailers and manufacturers are very sensitive to bad press that may ruin their brand images, and a number of them are seeking to portray themselves as socially responsible, which provides the movement with another point of leverage. In this section, I will explore what this implies for the constitution of corporate moral agency using a relational approach. This approach rejects the assumption that distinct entities with determinate core attributes are the primitives of analysis and that ‘entities exist before interactions and all relations should be conceived as relations between entities’.20 Instead, relationalism places priority on processes and relations, viewing agency as a result of social interactions through which the boundaries of actors are drawn and attributed with the agential properties that lend them their perceived stability.21 The definition of which entities qualify for moral agency, as well as the duties ascribed to them, is a political intervention into the process of drawing boundaries around entities and providing rhetorical justification for their significance. The justifications given will depend in part on the social–historical context that provides the discursive material, or rhetorical commonplaces, that are drawn on to attribute identity-constituting elements to the corporate agent. As noted above, apparel manufacturers are focusing their resources on creating brand images that resonate with consumers. Such images have been described as corporate attributes that relate more to ‘character’, ‘values’, ‘consciousness’, and even ‘soul’, than to products.22 The catch is that the more successful corporations have become at branding our culture and creating a certain reputation for themselves, the more vulnerable they are to disruption of that image through exposés linking their products to sweatshop conditions. As Klein states, ‘If brands are indeed intimately entangled with our culture and identities, when they do wrong, their crimes are not dismissed as merely misdemeanours of another corporation trying to make a buck. Instead, many of the people who inhabit their branded worlds feel complicit in their wrongs, both guilty and connected’.23 The movement has picked up on this power of the consumer and is wielding the potential loss of sales as a weapon

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against corporations. Through awareness-raising campaigns and direct actions at flagship stores, these anti-sweatshop groups are playing with and subverting corporate images and logos to get across their message against labour rights violations: Nike’s logo ‘Just Do It’ becomes ‘Just Don’t Do It’ or ‘Do It Just’. Corporations have responded by becoming involved in initiatives such as the FLA, which hold out the promise of providing them with a convenient sweat-free label to reclaim their image, or by attempting to appropriate the very language and symbols of parts of the movement for their apparel line, as evidenced by GAP’s 2001 window displays, which featured jeans hanging in front of a red anarchist banner with the words ‘freedom’, ‘independence’, and ‘we the people’ spray-painted across the windows. What is of special interest here is the manner in which the corporate image is relayed using human character traits. This would seem to indicate that corporations are trying to depict themselves as abstract persons who share attributes and values similar to those of human moral agents. For example, the Internet advertising company Critical Mass received the 2001 Cyber Lions Grand Prix award for the Web site it created for Nike. Customers could log on to the ‘Nike ID’ site and purchase a pair of customized sneakers made to their specifications, including a three-tosixteen-character personal logo to appear under the Nike swoosh. In a press release, Critical Mass depicted the services it provided as building ‘relationship marketing programs that enable organizations to develop deeper, more personalized relationships with their customers’.24 In an example of how such strategies can backfire on a corporation, antisweatshop movement activist Jonah Peretti attained cyberfame for his subversion of Nike’s offer to personalize sneakers when he attempted to order a pair emblazoned with the word ‘sweatshop’. Nike declined to produce the sneakers, claiming that the word sweatshop was ‘inappropriate slang’.25 Peretti’s e-mail correspondence circulated around activist listservs until it reached mainstream media, even landing him an interview on the Today show in a face-to-face confrontation with Vada Manager, Nike’s director of global issues management. While the depiction of the corporation as a unitary actor may serve to obscure the complex relations behind the facçade, activists are drawing on this rhetoric to demand that corporations display a conscience by being more humane towards the workers ‘behind the label’. In this way, both the corporations and the movement are tapping into the rhetorical commonplaces found not only in the abstract person approach underpinning much of the business ethics literature,26 but also in the Fiction Theory of legal personhood, which shapes Anglo-American corporate

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law.27 The movement appropriates these concepts in a manner that allows them to expand the range of corporate responsibilities beyond what the law has been willing to recognize thus far. This has significant effects on more than just the duties attributed to corporations; it goes to the heart of the manner in which corporate agency is constituted. If actors are understood in terms of the consequences that flow from their actions as rights- and duty-bearing units ‘stated in terms of specific effects wrought in other things’,28 then a shift in the rights and duties assigned to corporations will change the social consequences of their actions and simultaneously the discursive nature of their agency. In other words, when all that can be detected about actors relates to how they interact with other actors and the justifications they give for their actions, then properties attributed to actors are responses elicited from those interactions. In this sense, what is known about an actor flows from its actions; an actor is what it does. By offering reasons to justify an action, one constitutes an action as legitimate or illegitimate. This serves in turn to redraw the boundaries of the actor itself, delineating the space it can legitimately occupy by defining what is acceptable action based on the type of actor it is deemed to be.29 For example, when apparel corporations begin taking over labour-standard surveillance and social welfare functions from the state, then justify their actions in the language of corporate social responsibility, they have reconstituted themselves as collective moral actors situated somewhere between the public and private divide, with an identity that cannot be delimited to their role as economic institutions maximizing the profit of stockholders. It is important to note that although the movement and corporations often draw on notions of abstract or fictitious corporate personhood to justify corporate actions, the success of the movement in reshaping shared understandings of corporate rights and responsibilities cannot be explained using notions of agency that define it through the delimitation of its core attributes. The strategic deployment of such notions of agency is successful because it agrees with widely held understandings of collective agency, but this should not lead analysts of the movement to accept at face value the terms used in the debate among corporate, societal, and governmental actors. Notions of abstract corporate personhood are not necessarily the ‘best’ way of conceptualizing agency or the complex processes under way leading to a reconstitution of corporate moral agency. In fact, as will be shown below, the movement has been inconsistent in its use of the notion of abstract corporate personhood, and at times relies more on rhetoric that deconstructs the corporation

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into its component parts, such as stakeholders, CEO, managers, and board members. The other central process at play in the constitution of corporate agency is the use of rhetorical commonplaces that relate to the legitimation or delegitimation of corporate activities and serve to establish the boundaries of the corporate actor. By referencing international labour and human rights standards in their codes of conduct, the antisweatshop movement is creating a ‘fit’ between the old, widely accepted notions of human dignity and universal human rights and the new idea of corporate responsibility to not endanger, and even perhaps to aid in, the realization of those rights. As Virginia Haufler has indicated, transnational corporations are internalizing public demands for corporate social responsibility into the ‘triple bottom line’.30 Mission statements, codes of conduct, and annual reports increasingly include social, political, and environmental dimensions. However, the adoption of social responsibility rhetoric by corporations is a double-edged sword. On the one hand, it allows corporations to insulate themselves from pressure by the movement since they can point to the rhetoric as evidence that they have aligned themselves with the movement’s agenda. On the other hand, beyond indicating a possible internal reconstitution of corporations’ self-identity, this language provides a significant point of leverage, a form of rhetorical entrapment, for the movement to hold corporations to their ‘words’, and is a basis for activists to make further demands for improved production practices. For example, activists protesting the December 2000 firing of workers attempting to organize an independent union at a Korean-owned Nike contractor in Atlixco, Mexico, encouraged US universities affiliated with the FLA, of which Nike is also a member, to write to Nike and demand that it live up to its self-proclaimed acceptance of the FLA’s code of conduct, which includes freedom of association. One reason that corporations may be willing to incorporate much of the anti-sweatshop movement’s agenda into their bottom line is that the rhetoric of large parts of the movement does not contain language that challenges capital’s accumulation imperative. The movement is not seeking the demise of the corporation, but rather is mobilizing to change abusive practices that are already widely recognized as such in internationally accepted treaties and covenants. One of the repeated demands made by activists mobilizing against individual apparel manufacturer’s abuses is that the firm not cut and run in reaction to bad media exposure. In addition, both corporations and certain parts of the movement justify improving labour standards using the language of

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economic efficiency: healthy workers and safe work environments lead to increased productivity, and sweat-free goods are a response to consumer demand. This type of rhetoric also resonates well with the general trend towards increased government reliance on voluntary and market-based solutions to regulation and social welfare provision. Just as the recent Bush administration initiative to hand over portions of the provision of social services to faith-based and community groups is framed in terms of tenets of communitarian thought, so too has the anti-sweatshop movement tapped into the notion of civic responsibility by urging consumers to consider how consumption preferences are linked through global trade to the mistreatment of workers abroad.31 The rhetoric used is that of one world, or a global community resulting from the global economy. But is there fire behind all this smoke? Has the movement contributed to altering the legitimate boundaries of corporate activity in a manner that has challenged widely held notions of corporate moral agency and derivative duties? In line with Keck and Sikkink’s argument, the movement is using transnational communication networks to disseminate information, shape issues, and redefine expectations of corporate behaviour, thereby effecting a change in corporate and societal understandings of what it means to be a producer situated within and across communities. While there are no comprehensive studies of the impact of anti-sweatshop mobilization available, and the purpose of this essay is not to pass judgement on the effectiveness of instruments like codes of conduct, a few comments can be made to clarify how the movement has reshaped corporate moral agency.32 It is clear that state and intergovernmental institutions have been either unable or unwilling to enforce regulations of work conditions in corporations and their complex chain of subcontractors. Corporations for their part have been actively avoiding governmental regulation of their production practices and have sought to promote codes that they have aided in drafting and can participate in monitoring. The US government has aided this voluntarism by providing forums for corporations and groups within the movement to meet and discuss the establishment and implementation of voluntary labour and community standards. In terms of a relational analysis, it can be argued that what is occurring is a shift in the boundaries between particular social configurations – like the state and private actors – that are associated with the traits and attributes of actorhood.33 For example, what were once considered to be tasks of the state, such as community assistance and the regulation, surveillance, and

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enforcement of labour standards, are now increasingly falling under the aegis of both corporate actors and nongovernmental advocacy organizations. Nike providing basic education and micro-credits to workers is an example of the corporation taking on functions that have traditionally been thought to belong to international development agencies. As Haufler indicates, international organizations like the World Bank and the United Nations Development Programme are approaching corporations to combine market building and development with social justice.34 What is occurring is a shift in the boundaries between public and private actors, which has provided the ground on which the movement has raised its claims for greater corporate responsibility commensurate with increased corporate power. As a result, the transnational corporation is emerging as a global private authority rivalling the state in many functions.35 This change has also affected relationships between corporations and host governments. Apparel corporations are more willing to accept responsibility for monitoring their foreign contractors to ensure that they uphold local labour laws, something that only a few years ago they would have claimed was a duty of host governments. In addition, corporations increasingly acknowledge that they have a responsibility for the effects of their practices on the general welfare of the communities within which they produce, although they have not entered into any type of direct contractual obligations with them. The rationalization of this new configuration of boundaries often occurs with references to stakeholders rather than just stockholders. Furthermore, the anti-sweatshop movement has successfully forged a broader understanding of which portions of the apparel commodity chain should fall under the guardianship of the apparel retailer and brand name manufacturer. Corporations are increasingly viewing it as their duty to regulate production conditions in facilities they do not own, but from which they source, as evidenced by the stipulations for participation in the FLA. Through activist pressure, corporations such as Nike, JanSport, and Gear for Sports have for the first time publicly disclosed factory locations, something that until recently they protected as trade secrets. This knowledge makes it much easier for movement actors to monitor the goings-on in subcontracted facilities. If the notion of abstract corporate personhood propagated by the movement rests on the ability of corporate decision-making structures to synthesize various intra-organizational views into a coherent corporate position that can be interpreted as indicative of corporate rationality and intentionality,36 then incorporating outside entities, such as non-owned subcontractors, into the corporate ‘body’ constitutes a different type of agent. Various

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sides of existing social configurations have been bounded in new ways and legitimized as belonging to the corporate agent. While on the one hand the movement uses the language of abstract corporate personhood to legitimate its demands, the movement also challenges received notions of fictitious personhood. For example, in a recent Corporate Focus e-mail digest message entitled ‘Corporations: Different than You and Me’,37 the authors argue that viewing corporations as persons, as US law based in Fiction Theory does, confers upon them the same legal rights as human beings – which diminishes the likelihood of imposing external constraints upon their operations. In addition, many of the movement’s campaigns deconstruct the corporate agent by targeting board members or CEOs, like Phil Knight of Nike, as the faces behind the corporation, and by referencing the concerns of stakeholders over stockholders. However, the manner in which antisweatshop campaigns describe the corporations being targeted, their desire to hold corporations accountable for practices that cannot be linked to the intentional acts of specific individuals within the corporation, and the assignment to them of responsibilities as community members indicate that the movement’s understanding of corporate agency fits more closely with a notion of the corporation as a collective moral agent. What these tensions indicate is that the movement does not have a theoretically consistent notion of corporate moral agency from which appropriate corporate duties could be deduced. The construction of corporate agency is a fluid process. The movement taps into various rhetorical justifications that already resonate with a broad public in order to reconstruct the corporate actor in a manner that legitimates calls for greater corporate responsibility and permits challenges to corporate practices that were previously considered acceptable.

Conclusion I have attempted to demonstrate that an understanding of the construction of the moral agency of collective actors must avoid the assignment of attributes primarily consistent with the agency of individuals. There is no transhistorical entity that ‘is’ the corporation and from which moral rights and responsibilities can be derived. Rather, agency needs to be understood as a social construction emerging out of social–historical processes. Agents are social configurations that are constantly being created and recreated through processes of boundary drawing. The rationalization of the boundaries that define agents is the means by which the terms of a collective agent’s moral identity are constructed and justified.

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A study of the anti-sweatshop movement demonstrates how the boundaries of the corporation as a moral agent have been contested and reconstituted in an era of globalized production. Corporate practices have been increasingly challenged by the movement and have led to new shared understandings redefining what counts as legitimate corporate behaviour. The practices and language of the movement, the state, and corporations indicate that the conception of the boundaries of the corporate moral agent have shifted to include consideration of the effects of production on workers and local communities, which until recently were not viewed as belonging to the realm of the corporate bottom line.

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8 9

10 11

An earlier version of this chapter was presented at the BISA/ISA Special Workshop ‘Can Institutions have Morals?’, held at the University of Cambridge, 17–19 November 2000. This chapter was published in Ethics & International Affairs, XV 2 (2001) 99–115. For a concise discussion of various approaches to conceptualizing corporate moral agency within the business ethics literature see: R. Lippke, ‘Setting the Terms of the Business Responsibility Debate’, Social Theory and Practice, XI (1985) 355–70. While I speak of the anti-sweatshop movement as if it were a unitary actor, I fully realize that the construction of its agency must be problematized just like that of the corporation. Space constraints do not allow for this. M. Keck and K. Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (Ithaca: Cornell University Press, 1998). Ibid., p. 3. Ibid., p. 17; M. Laffey and J. Weldes, ‘Beyond Belief: Ideas and Symbolic Technologies in the Study of International Relations’, European Journal of International Relations, III (1997) 193–237 (p. 203). P. T. Jackson, ‘Occidentalism: Rhetoric, Process, and Postwar German Reconstruction’, Ph.D. dissertation (New York: Columbia University Department of Political Science, 2001); J. Schotter, Cultural Politics of Everyday Life (Toronto: University of Toronto Press, 1993). R. Broad and J. Cavanagh, The Corporate Accountability Movement (Washington, DC: Study for the World Wildlife Fund’s Project on International Financial Flows and the Environment, 1997), p. 1. See Corporate Watch, Blood, Sweat and Shears: Corporate Codes of Conduct, http://www.corpwatch.org/trac/feature/sweatshops/codes.html. P. Harvey, et. al., Developing Effective Mechanisms for Implementing Labor Rights in a Global Economy (Washington, DC: International Labor Rights Fund Workers in the Global Economy Project Papers, 2000), Sec. B; also available at http://www.laborrights.org/projects/globalecon/ilrf/index.html. F. Abernathy et al., A Stitch in Time: Lean Retailing and Manufacturing: Lessons from the Apparel and Textile Industries (New York: Oxford University Press, 1999). G. Gereffi, ‘The Transformation of the North American Apparel Industry: Is NAFTA a Curse or Blessing?’, Integration and Trade, IV (2000) 46–95.

The Anti-Sweatshop Movement 155 12 Ibid.; G. Gereffi, ‘The organization of Buyer-Driven Global Commodity Chains: How US Retailers Shape Overseas Production Networks’, in G. Gereffi and M. Korzeniewicz (eds), Commodity Chains and Global Capitalism (Westport, CT: Praeger, 2000), pp. 95–122. 13 Abernathy, et al., pp. 48 ff. 14 N. Klein, No Logo: Taking Aim at the Brand Bullies (New York: Picador, 2000), p. 345. 15 Klein quotes Nike CEO Phil Knight as saying: ‘There is no value in making things anymore. The value is added in careful research, by innovation, and by marketing’, ibid., p. 197. 16 G. Gereffi, ‘North American Apparel Industry’, p. 51. 17 Klein, pp. 327ff; and R. Appelbaum and P. Dreier, ‘The Campus AntiSweatshop Movement’, The American Prospect, XLVI (1999) 71–8. 18 ‘White House Panel Releases its Anti-Sweatshop Agenda’, Women’s Wear Daily (14 November 1998), p. 2. 19 The FLA currently has 175 member universities and the WRC has 114. See their respective Web sites at www.fairlabor.org and www.workersrights.org. 20 P. T. Jackson and D. Nexon, ‘Relations Before States: Substance Process and the Study of World Politics’, European Journal of International Politics, V (1999) 291–333 (p. 291). 21 A. Abbott, ‘Things of Boundaries’, Social Research, LXII (1995) 857–82 (p. 860). 22 Klein, pp. 7ff. 23 Ibid., p. 335. 24 See the 20 June 2001 press release ‘Critical Mass Wins Grand Prix at Cyber Lions in Cannes’, available at http://www.criticalmass.com/low/news/ press_0.html. 25 See the e-mail correspondence between Peretti and Nike on the Village Voice Web site, ‘Making Nike Sweat’; available at http://www.villagevoice.com/ issues/0107/jockbeat.php. 26 P. French, ‘The Corporation as a Moral Person’, American Philosophical Quarterly, XVI (1979) 207–15 (p. 209). 27 For a discussion of various legal theories of corporate personhood see: M. Hager, ‘Bodies Politic: The Progressive History of Organizational “Real Entity” Theory’, University of Pittsburgh Law Review, L (1989) 575–656. 28 J. Dewey, ‘The Historic Background of Corporate Legal Personality’, Yale Law Journal, XXXV (1926) 655–73 (pp. 660–1). 29 Jackson, ‘Occidentalism’, p. 47. 30 V. Haufler, ‘Business Interests and Social Justice in the International Economy’ (paper presented at Carnegie Council Workshop on Ethics, Actors and Global Economic Architecture, New York, 3–5 June 1999). 31 ‘Needed: Catchword for Bush Ideology. “Communitarianism” Finds Favor’, Washington Post (1 February 2001). 32 For a preliminary assessment of the effectiveness of anti-sweatshop mobilization see A. Bernstein, et al., ‘A World of Sweatshops: Progress is slow in the drive to better conditions’, Businessweek Online (6 November 2000). 33 See Jackson and Nexon, ‘Relations Before States’, pp. 291–332; and Abbott, ‘Things of Boundaries’, pp. 857–82. 34 Haufler, ‘Business Interests’.

156 Rebecca DeWinter 35 See C. Cutler, ‘Locating “Authority” in the Global Political Economy’, International Studies Quarterly, XLIII (1999) 59–81. 36 See French. 37 R. Mokhiber and R. Weissman, ‘Corporations: Different Than You and Me’, Corporate Focus, e-mail digest (24 January 2001), available at http://lists. essential.org/pipermail/corp-focus

Part IV Hard Cases: Apportioning Blame

9 The Responsibility of Collective External Bystanders in Cases of Genocide The French in Rwanda Daniela Kroslak*

Introduction If we could learn to look instead of gawping, We’d see the horror in the heart of farce, If only we could act instead of talking, We wouldn’t always end up on our ass. This was the thing that nearly had us mastered; Don’t yet rejoice in his defeat, you men! Although the world stood up and stopped the bastard, The bitch that bore him is in heat again. Bertolt Brecht After the Holocaust, the Allies proclaimed that such atrocities should ‘Never Again’ take place. However, genocide has occurred after the Holocaust, most recently in Rwanda. Can we blame those who stand by, those outside the genocide who do not, or only hesitantly, come to the rescue of the victims, for the events that they do not prevent? Do these ‘passive observers’ have responsibilities towards the victims, not least because of this promise, which is enshrined in the United Nations Genocide Convention? And, importantly, can a government that constitutes a collectivity of actors be at all held responsible as a whole when such duties are not met? This chapter is an attempt to analyse these questions. It does not aim to define the concept of genocide or its causes, nor does it explore in great detail why ordinary people engage in the rescue of the persecuted. Instead, it concentrates on the role of a specific type of collective actor,

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the external bystander, and the degree to which such an actor can be held responsible for the consequences of its actions and inactions. In this pursuit, this analysis will be divided into three parts. First, it will examine what we mean by an ‘external bystander’ and whether it is meaningful to hold a collective external bystander, here a state government, responsible for the consequences of its actions. Second, the Genocide Convention will be introduced as a normative standard against which state governments can be held responsible in relation to genocides that they neither prevent nor suppress. Third, the French government’s role in the failure to prevent or suppress the 1994 Rwandan genocide will serve as a case study and its responsibility in relation to the genocide, as a collective external bystander, will be critically examined.

The ‘Bystander’ Whereas in criminology the bystander is a frequently occurring and analysed category, in the context of genocide the role of the bystander and the degree to which it can be held accountable for its actions and inactions remain neglected. The ‘[c]ontemporary Holocaust historiography categorizes the relevant historical actors into three basic groups; the Perpetrator, Victim and Bystander’.1 But what is it that we mean by bystander?2 Often used and abused,3 the definition and delimitation of this label are complex. One definition restricts bystanders to ‘non-rescuers … [who] had done nothing out of the ordinary during the war either to help other people or resist the Nazis’.4 This, of course, illustrates how the term may be used in a variety of contradictory ways since it might be applied to a wide range of people who more or less passively (or actively) contributed to the persecution of the Jews. A question one might also ask in this context is whether the perpetrators themselves did anything out of the ordinary. This is a contested argument used by Adolf Eichmann during his trial in Jerusalem, and also one put forward from a critical perspective by Zygmunt Bauman, who maintains that ‘every “ingredient” of the Holocaust … was normal; “normal” not in the sense of the familiar … but in the sense of being fully in keeping with everything we know about our civilization’.5 Tzvetan Todorov makes the concept of responsibility an inherent part of his definition of the bystander. In his work, ‘bystanders [are] the passive spectators who are responsible at most for not coming to the aid of those in danger’.6 Although this definition does not define the boundaries of the term, it implies that bystanders have a responsibility

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towards victims of genocide. Importantly, Todorov thereby clearly attaches a moral dimension to the concept. He continues his definition by stating that these bystanders ‘need answer not to the courts but to the history of their own consciences’.7 It is extremely difficult to bring out this moral dimension clearly. It is important to underline that along the spectrum of actors who witness the abuse of fellow members of their society (internal bystanders) or who witness the abuse of fellow human beings outside their own society (external bystanders), there are those who become perpetrators at the one end and those who become rescuers at the other. In between each pole lies a broad continuum reflecting varying degrees of ‘bystanderness’ and responsibilities to act. (This is true for both individual and group actors.) I suggest that different bystanders can therefore bear different degrees of responsibility for their passivity when confronted with those in danger. In the case of genocide, I will argue that the degree of responsibility that an agent bears for not helping those in danger depends on three criteria: the extent of the bystander’s knowledge of the atrocities, the bystander’s involvement prior to and during the genocide, and the bystander’s capability to intervene to prevent or suppress the genocide. The focus of this chapter is on the bystander not as an individual but as an organized group. Moreover, it singles out those collective bystanders who find themselves outside a genocidal society, what Ervin Staub identifies as ‘other nations and outside groups who remain passive’.8 Specifically, this chapter will examine the French government as a collective external bystander in the case of the genocide in Rwanda. However, attributing responsibility and blame to a collective actor for failing to live up to certain standards is a controversial issue in itself. It is the aim of this volume to explore such issues and this chapter will contribute to this discussion by questioning what is meant by holding a collective actor responsible for some action or event. Can a government, as a whole, be held responsible at all?

Defining ‘Responsibility’ Before addressing what it means to say that a collective actor, such as a state government, is responsible for some action or event, it is necessary to review what is meant by ‘responsibility’. There are different kinds of connotations to responsibility that are reflected in its use in different contexts. First, there is the meaning of a person ‘being responsible’, which is a character description rather than an assessment of the

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person’s acts. In other words, it is a question of virtue not of responsibility.9 Second, causal responsibility implies the direct link between cause and effect. This is derived from a very restricted understanding of ‘cause’ for ‘since the seventeenth century it has been increasingly used in a narrower sense … Causal causes are, or approximate to, physical causes’.10 Causal responsibility presupposes physical sources for responsibility. Third, there is agent responsibility, that is, the responsibility that is directly related to the acts of agents.11 This is the connotation invoked throughout this volume. One can distinguish between two meanings of agent responsibility: that which is used in the context of accountability and that which is used to mean obligation. The former, accountability, is used a posteriori and specifies an action and/or the resulting consequences that can be assigned to an agent. The latter, obligation, connotes a priori character.12 In this context, responsibility is used towards action in the future. In contrast to Toni Erskine’s analysis in Chapter 1, and to the contributions by Paul Cornish, Frances Harbour, and Rebecca DeWinter in Part III of this volume, the present chapter is mainly interested in the former: the retrospective use of responsibility. In this sense, ‘responsibility is … concerned with having to answer a certain question, namely why one acted as one did’.13 This demand for an answer is often made in response to failure.14 Responsibility is linked to a set of standards – legal, moral or political – by which an agent can be judged. Moreover, if responsibility is used in this sense of accountability, then it entails the notion that some consequence could have been avoided. If x is responsible for y, x could have avoided or altered the consequences of y.15 Thus, x has a liability to answer for why y came about. It is this understanding of responsibility that will be reflected in the second part of this chapter in examining the French government’s responsibility for certain actions and events in Rwanda between 1990 and 1994. Of course, the two categories of responsibility (accountability and obligation) cannot be neatly separated and it will be necessary to establish what were considered duties on the part of the French government at the time of action in order to assess the accountability of this agent in retrospect. These duties will be explained below with reference to the Genocide Convention.

Holding a collective actor responsible In the context of genocide, the question of the responsibility of a collective actor was first raised during the Nuremberg Trials and the

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Eichmann Trial. Questions were also put forth with regard to bystanders; the role of the church and the actions of the Allies during the Holocaust have been the focus of extensive research. Must actions performed in the name of a collectivity (e.g., corporation or state), and the resulting responsibility for these actions, be reduced to individuals? Three main schools of thought address this type of question in theoretical and applied ethics: those whose ontological basis is the individual (methodological individualists), those who defend the group as an entity (collectivists), and those who aim to combine the two. Methodological individualists argue that ‘it would be unfair to the individual to merge his moral responsibilities with all other fellow group members’.16 Consequently, all statements of the actions of collectivities are in principle reducible to individual statements. This reductionist position assumes that the collectivity is merely a tool of the individuals who compose it.17 There are problems with this position. Methodological individualism neglects the structure in which individuals act: the individual never acts in a vacuum. Even though one can say that the individual is responsible for his/her decisions and choices, one has to bear in mind that certain decisions would not have been made, had he/she not been in a particular environment. As Howard McGary points out, we have to realize that ‘we live in a world where we can no longer view ourselves as being detached from the actions of groups of which we are a part’.18 In addition, methodological individualists cannot rationalize a sense of solidarity within a group. They ignore that ‘solidarity … unites … individual members and accounts for their ability to function as a group’.19 Peter French and other collectivists try to fill these gaps of methodological individualism.20 The main problem methodological individualists have with allocating responsibility to collectivities is the application of notions which, they believe, are inherently individual to groups of persons. Collectivists, however, do not share this fear. They maintain that, ‘groups must have some mechanisms by which individual intent is melded into group intent’.21 They believe that ‘with regard to rights and duties, [collectivities] … should be considered moral persons, on the same footing as any other kind of moral agent’.22 Larry May takes the ‘middle position’. He claims that methodological individualists are right to argue that there is no good reason for positing the existence of social groups as superentities, and that collectivists are right that an adequate explanation of the behaviour of social groups cannot be given by reference only to the behaviours of discrete individual persons. He insists that ‘the relationships and structures of these

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groups must be included in the explanation, and these components are essentially social in nature’.23 Yet, May believes that neither methodological individualists nor collectivists provide an adequate answer to the allocation of responsibility to groups. His middle position looks at the relationship between individuals and structure neglected by both schools of thought, treating ‘individuals as key components of a given group’.24 Contrary to methodological individualists, May argues that a collectivity can act. By collective action he understands that ‘group members aid one another in significant ways and thereby enable other members to act differently than they could act on their own’.25 He rejects radical individualism since it does not account for collective phenomena such as language, group solidarity or traditions, which are inherently collective activities and rely heavily on the structure of a group. Equally, he disagrees with French’s claim that a corporation is a ‘real’ person because of its decision-making structure. May puts forward a more persuasive argument, namely that a corporation acts for and through individual persons but that it cannot act directly as individual persons can.26 Through what May calls the ‘incorporating act’ individual acts are linked together, thereby allowing the group to act. May convincingly shows how one can attach responsibility to collectivities by treating individuals as a key component and not neglecting the structure of the collectivity. He holds that through the incorporating act, a collectivity, such as a corporation, can be held responsible for the consequences of its actions even though he asserts that only individuals actually act, not the corporation itself. Strangely though, he excludes states from his theoretical approach. I will suggest that May’s model can be applied to all kinds of collectivities, including state governments. Members of a government, such as the cabinet, can be compared to the board of directors in May’s preferred example of a corporation. The state government acts through the cabinet and its ‘employees’ (diplomats, government officials, etc.). Thus, those who determine French government policies in Paris (ministers, foreign ministry officials) and in Rwanda (embassy staff, cooperation officials, army personnel) act for the French government. The French government operates through the individual officials. Consequently, the actions and statements of those who work in some shape or form for the French government in relation to Rwanda will contribute to the analyses of the responsibility of the whole of the French government. May’s notion of collective responsibility is particularly useful for examining the role of the French government in the failure to stop the

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genocide in Rwanda. Although the French government actually acts through its individual officials (ambassadors, ministers, government employees, military, etc.), I will argue that responsibility can be assigned to the French government as an entity. As May argues, these individuals were part of a structure and acted together in ways that they would not have acted on their own. This argument is supported through the use of statements of individuals that represented the French government in Rwanda or formulated French policy in Paris. Their testimonies form an integral part in attributing a degree of responsibility to the French government as a whole for the genocide in Rwanda.

The Genocide Convention Driven by the horrors of the Holocaust, the United Nations Convention on the Prevention and Punishment of the Crime of Genocide was adopted on 9 December 1948. It was to ensure that atrocities such as committed by Nazi Germany would not reoccur, and that provisions were made, in case it did happen again, to punish the perpetrators. Raphael Lemkin,27 the force behind this groundbreaking project and initiator of the Convention, insisted that ‘[g]enocide is a denial of the right of existence of entire human groups … [it] is contrary to moral law and to the spirit of the United Nations’.28 The Convention was designed to prevent and punish the crime, which was originally defined by Lemkin as ‘a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves’.29 Representing a consensus between the contracting parties and now signed by 133 states,30 the text limits genocide to ‘acts with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such’.31 The Genocide Convention is not purely a legal human rights instrument; it also provides a relatively uncontested normative consensus, which condemns genocide as a crime. In support of this argument, Chris Brown asserts that ‘[t]he Genocide Convention of 1948 seems a plausible example of a piece of international legislation that outlaws an obvious wrong – obvious in the sense that any moral code that did not condemn genocide would not be worthy of respect’.32 As well as representing a normative consensus on the condemnation of genocide, the Genocide Convention represents an acknowledgement on the part of contracting states that they have duties to act when faced with cases of genocide. Indeed, the signatories commit themselves ‘to prevent and punish’ genocide (Article 1). In the case

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‘Bosnia-Herzegovina v. Yugoslavia’ brought before the International Court of Justice, Judge ad hoc Elihu Lauterpacht reaffirmed this feature of the Convention: ‘The duty to prevent genocide is a duty that rests upon all parties and is a duty owed by each party to every other’.33 To reinforce this he added that ‘the effect of the Convention is also to place upon States duties to prevent and to punish genocide on the inter-State level’.34 This moral consensus on both the condemnation of genocide and the existence of duties to prevent and punish its occurrence, provides a normative standard by which certain state governments that become external bystanders to genocide can be held responsible for their failure to act.

The Rwandan genocide From April to July 1994, 800 000 to 1 million people died in a genocide unleashed by Hutu extremists on the Tutsi minority and moderate Hutu. Rwanda had been struck with violent conflict between the two groups since independence from Belgium, and after a Hutu government was established, the Tutsi became the target of discrimination and violence.35 This triggered a large refugee flow in the 1960s and 1970s, and in the late 1980s the sons and daughters of these refugees demanded their right to return to their home country.36 The autocratic regime under President Habyarimana denied them this right, justifying the exclusion of the Tutsi living inside and outside of Rwanda with reference to economic hardship,37 overpopulation,38 and the Tutsi attitude towards the Hutu, historically and socially.39 On 1 October 1990, the rebel Rwandan Patriotic Front (RPF), which saw itself as the representative of exiled Rwandans and the defender of democratic values, invaded Rwanda from Uganda to make its voice heard nationally and internationally. Within days, French, Belgian, and Zairian troops came to Habyarimana’s aid. The French troops were the only ones to stay behind until December 1993 and helped the regime considerably in the war against the RPF. During this time of civil war, international donors, including France, pressured the regime in Rwanda to open up and democratize.40 Although Habyarimana complied with this demand to some extent, at least on the surface, the tense relationship between Hutu and Tutsi was used as a political tool, which led to increasing organized violence against the Tutsi. Extremist parties and militias were created; hatepropaganda was not only tacitly tolerated, but also actively pursued by the government. Thus, from 1990, the tools needed to commit genocide were nurtured (hatred) or put in place (propaganda machinery, militias).

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The peace process between the RPF and the Rwandan government was subject to international monitoring and culminated in the Arusha Accords in August 1993. A UN peacekeeping mission (UNAMIR) was dispatched to observe their implementation. Although the UN was on the ground just before and during the genocide, and the media made the world witness the atrocities in Rwanda, the international community stood idly by.41 The French government, as a member of the Security Council and due to its close relationship with Rwanda prior to the genocide, will serve as an example of an external bystander that bears a significant degree of responsibility in relation to the Rwandan genocide. The responsibility of the French government for the failure to prevent and suppress the Rwandan genocide will be explored according to three criteria: knowledge, involvement, and capability. In this analysis, May’s concept of collective responsibility is reflected in the acts and statements of individuals that represented the French government in Rwanda or formulated French policy in Paris. These acts and statements form an integral part in assessing the responsibility of the French government as a whole for events in Rwanda. The French government and the failure to prevent genocide French involvement in Rwanda was marked by a close relationship between French and Rwandan authorities. As part of the Francophonie, Rwanda represented an important ally in the pursuit of francophone, that is, French interests in Central Africa. Therefore, and with reference to a military cooperation agreement, it was no surprise that Mitterrand did not hesitate to help the Rwandan regime against a rebel invasion. After the end of the Cold War, France appeared to embark on a new course in its African policy, making aid dependent on democratization.42 The Rwandan government, in the midst of civil war, complied with these pressures in return for continued political and military aid and launched a democratization process in 1990/1.43 When the RPF invaded Rwanda on 1 October 1990, Paris extended its formerly limited military cooperation programme into the training and support of the army, police and Presidential Guard (later perpetrators of the genocide). France became Rwanda’s most important ally, both politically and militarily, in the fight against the RPF. Knowledge Due to its close relationship with the regime, the French government had at its disposal an extensive pool of information. During its presence

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on the ground, Paris emphasized both the efforts of the incumbent regime to introduce a democratic system and its involvement in a war, but at the same time underrated the radicalization of political life in Rwanda. In fact, diplomatic notes sent as early as October 1990 show that the French Ambassador Martres was well informed about the radicalization of the situation in Rwanda.44 Moreover, the setting up of the hate radio (Radio Télévision Libre des Mille Collines), extremist rallies, massacres, the activities of militias, etc., were all developments that worried other international actors. A concerted effort was made by several NGOs to send an Independent Commission to investigate the human rights abuses in Rwanda.45 However, contrary to other Western diplomats, the French Ambassador Georges Martres dismissed the findings of this report of massive human rights abuses as ‘just rumours’.46 Furthermore, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions of the Commission on Human Rights, Waly Bacre Ndiaye, visited Rwanda from 8 to 17 April 1993 and published his report a week after the conclusion of the Arusha Accords. In his report he stated that serious human rights violations were taking place and that there was a risk of genocide.47 No French statement was given in this context. During the French presence, the Rwandan regime refined its discriminatory policies towards the Tutsi minority. Political opponents had to fear for their lives, too. The preparation for the genocide was foreshadowed by a series of pogroms that began at the end of 1990. It is with hindsight that one can safely trace the trail of genocide from the massacres in Kibilira in October 1990, of the Bigogwe in January 1991, in Bugesera in March 1992 – the ‘dress rehearsal for April 94’,48 in Kibuye in August 1992, and in Gisenyi in early 1993.49 These massacres cost the lives of several thousand people and the French government was well aware of them.50 The historian and Rwanda specialist Jean-Pierre Chrétien emphasizes what the French government in Paris and Kigali must have known: [T]he ethnic option is clearly put in place ideologically from October 1990 onwards by the weekly Kangura which distinguishes itself in its openly racist denunciation of the Tutsi … and finally by feeding the fantasies of a ‘Nilo-Hamitic’ urge for universal domination, which oddly revives memories of the anti-Semitic propaganda of the Nazi era.51 However, the French did not take much notice of the discriminatory policies of the regime and concentrated on the war with the RPF.

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While the notorious Interahamwe militia was set up in 1992, the French supported the war effort of the Rwandan government. French troops were to instruct the units of the Rwandan army and police, but were not to participate in military operations.52 However, to restore a ‘climate of security and confidence’, French officers were supposed to provide information about the local situation from their living quarters outside Kigali in the military training camps that they shared with their students.53 This means that the Ministries of Cooperation (through its detachment), Defence (through its troops), and Foreign Affairs (by means of Ambassador Martres), as well as the African Unit of the Elysée (by its direct link to the Rwandan President and overall command of the operations), were informed of the situation in the field. The French government also received information from the French secret service (DGSE). In fact, ‘France … had a considerable capacity for overt and covert information gathering in Rwanda at the time’.54 Involvement In terms of French political and military involvement in Rwanda, the second criterion for evaluating the degree of bystander responsibility, French presence was marked by a close relationship with the regime in Rwanda.55 The personal familiarity between the two presidents was widely known.56 Furthermore, the French government increased its aid programme to Rwanda considerably after the beginning of the war against the RPF.57 Since ‘France, the self-styled “gendarme of Africa,” had no reason to believe in 1990 that tiny, prosperous Rwanda could upset this particular apple cart’,58 it did not hesitate to triple financial aid to Rwanda from 1990.59 French military involvement began when it put on Belgium’s ‘colonial slippers’ during the 1970s.60 Until the RPF invasion on 1 October 1990, which heralded a new kind of French engagement in Rwanda, technical military assistance was rather limited. President Mitterrand sent troops to Rwanda on 4 October 1990 on a ‘humanitarian’ mission, which meant to protect French nationals.61 Even though Mitterrand declared on 15 October 1990 that France would leave the country as soon as this ‘humanitarian’ action was completed, 62 the troops were still there in 1993. The official reason for this was to avoid the escalation of violence. Yet again a contradiction between official declarations and actual involvement in Rwanda is demonstrated in the statement of Colonel Cussac, Head of the French Military Assistance Mission to Rwanda: ‘French military troops are here in Rwanda to protect French citizens

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and other foreigners. They have never been given a mission against the RPF’.63 However, troops were deployed in areas where neither French nor other foreign nationals lived.64 Ambassador Jean-Philippe Marlaud shows himself to be more sincere: ‘I don’t expect the Rwandan army to suppress the RPF by itself’.65 Thus, Paris was perfectly aware of the fact that Habyarimana could not survive were it not for its support. And the support was plentiful: French military patrolled in the war zone, manned checkpoints and advised the army on the ground.66 French soldiers were involved in the questioning of prisoners of war, that is, RPF soldiers,67 trained the army, police and, for a short time, the presidential guard, and got involved in the war effort.68 Another aspect of French involvement in Rwanda was its half-hearted support of democratization. Paris did not support those parties that were truly seeking democratic rule but was much closer to the extremist parties. In fact, ‘France had discreetly been backing the CDR [the extremist party spreading hate propaganda] in various ways’.69 The French government’s fixation on the war went so far that the French Minister for Cooperation, Marcel Debarge, ‘asked the opposition parties to “make a common front” with President Habyarimana against the RPF’.70 Yet, Paris argued that it supported the majority in Rwanda. Officials and politicians bought into the logic that because a government is Hutu it is not only ‘automatically legitimate but also ontologically democratic’,71 without taking into account the different representations amongst not only the Hutu but also the Tutsi. French officials claimed, however, that their aim was to strengthen the Hutu regime so that it could be an equal partner in the search for a political solution to the conflict.72 Hence, the French government officially supported the Arusha peace process, and some effort did go into the negotiations. However, ‘instead of following military with political action’, Paris ‘turned its back on the whole dismal non-process, leaving the Arusha and post-Arusha witches’ brew to simmer nastily until it blew up in everybody’s faces’.73 Capability The last criterion for assessing whether a particular external bystander can be said to bear some degree of responsibility in relation to a genocide that it failed to prevent is the bystander’s capability to act to avert genocide. Through its close relationship with the Rwandan regime, it is highly likely that the French government was aware of the radicalization in Rwanda. Howard Adelman and Astri Suhrke rightly point out that ‘the creation of documented structures of violence (death squads,

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death lists, and later, hate propaganda inciting violence) provided warnings of a potential genocide’.74 These warnings could have allowed the French government to take action and use its good contacts with the government to avert the spiral towards the genocide. Pressure could have been put on Habyarimana and his extremist cronies, and aid could have been made conditional on the democratic progress of the regime. Although Paris had adopted a rhetoric of democratization after the 1990 La Baule conference, French support for democratic opposition parties in Rwanda was limited. More forthcoming efforts could have been made to foster their influence and importance in Rwandan society. The French government did not make their military or economic aid dependent on an eradication of the discriminatory structures. Aid was unconditional even if not unrestricted, since France did not succumb to all of Rwanda’s requests. As noted above, warnings by NGOs and the UN Commission on Human Rights were ignored and dismissed. With its troops on the ground the French government had not only good insight into the activities and structure of the Rwandan army and police, but it was in a position to exercise considerable influence on the regime through those channels. However, the French officers who trained police, army and presidential guard were far too negligent in choosing their candidates. Some of the officers trained by the French became part of the militias that were some of the main perpetrators of the genocide.75 Furthermore, the French government did not cease its continuous arms supply to Rwanda.76 The logic of external aggression made France send arms to Rwanda without considering the internal situation, although the massacres had long reached worrying proportion. These arms were not conditional either on Habyarimana’s personal participation in the peace process or on improving ethnic relations internally. Paris had many opportunities to intervene on a military and diplomatic level to halt the preparation for genocide. The combined fulfilment of the three criteria – extensive knowledge, heavy involvement, and ample capability – shows that the French government bears a great responsibility for not averting the genocide in Rwanda. The collective silence about the developments in Rwanda makes the French government as a whole responsible for not doing more to minimize the radicalization process. Although some individuals, such as Ambassador Martres – who played a key role in determining French policy in Rwanda – bears strong individual responsibility for the consequences of these policies, their actions were influenced and led by the French government as a whole. According to May’s theory, individual actions undertaken under the umbrella of a collectivity form an

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overarching collective responsibility. Hence, individual statements/acts – among other evidence – can be used to establish French responsibility. In applying May’s theory, I therefore argue that the French government bears responsibility for its actions in Rwanda and inaction with regard to the atrocities committed. With reference to the understanding of retrospective responsibility on which this chapter draws, I will maintain that the French government did not live up to its duties enshrined in the Genocide Convention, namely to ‘undertake to prevent’ (Article 1) genocide, and is liable to answer for the consequences of this failure. The parliamentary report of 1998 carefully admits that, ‘the threat of a possible genocide had been underestimated while openly racist extremist branches multiplied in most of the political parties’.77 Ignored warning signs, heavy involvement, and underrated opportunities to mitigate the danger of genocide determine the high degree of bystanderness of the French government in the preparatory phase of the genocide in Rwanda. The French government and the failure to suppress genocide By the time the genocide started on 6 April 1994, French troops had withdrawn and cleared the way for UNAMIR. After the shooting down of the President’s plane, a small circle of extremists unleashed genocide in Rwanda. Tutsi and moderate Hutu were systematically eliminated with the aim to eradicate the ‘enemy’ – the Tutsi. Could the French government have suppressed the Rwandan genocide once it had begun? Although the French delegation had shrunk to a minimum after UNAMIR was dispatched in the last quarter of 1993,78 its prior connection to the government was of crucial importance during the genocide. Paris’s level of information was considerable, and its policy of an ‘equal’ political solution, with its focus on the civil war, remained the same. Furthermore, as French military forces can be rapidly dispatched to the African continent, the government had the capacity to intervene at an early stage in the genocide. Knowledge How much information did the French government have at its disposal during the time that the genocide was actually being carried out? The evacuation force (Opération Amaryllis), which arrived in Kigali shortly after the assassination of the President, moved freely around Kigali (as opposed to UNAMIR)79 and was in Rwanda for almost a week – enough

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time to gather information about the situation on the ground. At this time there were 1500 evacuees who had lived through the first days of mayhem and could have provided first-hand accounts of the atrocities. In addition, the French NGO, Médecins Sans Frontières, with the ICRC the only non-governmental agency remaining on the ground, lobbied the French authorities concerning the situation in Rwanda. By then the press in France reported daily about the atrocities and their systematic nature. The French press, notably Libération, put pressure on the French government to recognize the atrocities. Yet, the French government continued its policy of insisting on a ceasefire to end hostilities between the warring parties.80 The French government also had access to other sources that confirmed these reports. Information came through the UN, albeit slowly. As a result of poor management during this time of crisis, the UN only gradually started to react to the situation and draw attention to the genocide in Rwanda. But despite the fact that it took UN officials until 31 May, that is, eight weeks into the systematic killing, to officially identify the genocide as such, it is significant that this identification was made. The Secretary-General’s report acknowledged that ‘[t]he systematic manner and the scale of the massacres was clear evidence that these were not spontaneous or random killings’81 and that ‘[o]n the basis of the evidence that has emerged, there can be little doubt that it constitutes genocide’.82 Although the international press largely misreported the atrocities in Rwanda until May, eventually the true nature of the events trickled through. On 11 and 12 May the High Commissioner for Human Rights, José Ayala Lasso, visited Rwanda, while lobbying the Commission on Human Rights.83 In response to this, the Commission on Human Rights appointed a Special Rapporteur, René Degni-Ségui, who compiled three reports on Rwanda.84 After his first visit to Rwanda in May 1994 Degni-Ségui confirmed that the Rwandan massacres constituted genocide – this was the first UN document to say so.85 By then, however, the French Foreign Minister Alain Juppé acknowledged himself that the massacres in Rwanda constituted genocide.86 Involvement During the months of the genocide, French involvement was influenced by its prior engagement in Rwanda. Officials pursued the same argumentation as they did over the previous four years: the outbreak of violence was the result of the breach of the ceasefire and entailed a violation of the Arusha Accords. In other words, the violence represented a

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reignited civil war.87 The French government’s persistence on the logic of civil war and on achieving a ceasefire implied that two more or less equal parties faced each other and not that a small circle masterminded the extermination of a specific group, that is committed genocide. Both were underway, civil war and genocide, but the causal connection made by the French government was not justified. This policy misled the public as well as the less informed non-permanent members of the Security Council. Following its ceasefire policy, the French government met two prominent members of the interim government for talks in Paris in late April 1994.88 As during the Arusha peace talks (1992/3), France tried to maintain its role as an ‘impartial’ negotiator. The fact that the French government invited some of the most notorious extremists to Paris and insisted on a policy of peace negotiations not only reduces its credibility with respect to judging the political and military situation, but also puts into question the sincerity of the outrage about the deteriorating humanitarian situation in Rwanda voiced by government officials. It is accurate to conclude at the very least that ‘France made a mistake by considering that she could grant as much credit and as much weight to all the representatives of the actors of the conflict’.89 The result was the considerable reduction of UNAMIR in mid-April and the reluctant support for its reinforcement under Resolution 918 four weeks later. In fact, the failure of the French government to suppress the genocide is very much reflected in this political judgement. In military terms, French troops first got involved to evacuate French and other foreign nationals from Rwanda in the initial days of the crisis. During this mission the French also evacuated 40 members of the ruling party90 and other dignitaries of the regime including members of the presidential clan.91 It was not until 22 June 1994 that French troops returned to Rwanda, this time with a Chapter VII mandate92 of the UN Security Council.93 Although the French intervention was viewed with a suspicious eye, many members of the Security Council were glad that someone was taking some kind of action. Still, the fact that an existing UN mission operated under a peacekeeping mandate (i.e., under Chapter VI), and that a French operation would receive a Chapter VII resolution, was inconceivable. The French government was the only international agent to take specific action in response to the genocide in Rwanda (Operation Turquoise). Prime Minister Balladur insisted that ‘France has sent its soldiers out of a moral duty to act without delay in order to stop the genocide and provide immediate assistance to the threatened populations’.94 However, this forms a contrast to the alleged arms shipments France

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sent during the genocide – even after the UN arms embargo of 17 May 1994.95 These arms deals remain contested, but one official declared to the Rwanda specialist Gérard Prunier that ‘we are busy delivering ammunition to the FAR [government forces] through Goma. But of course I will deny this if you quote me to the press’.96 French involvement during the genocide remained considerable. Its role on the Security Council, its relationship with the interim government in Rwanda and the questionable nature of its own intervention underline its responsibility for allowing the genocide to continue. Capability Its knowledge of the situation in Rwanda and its direct involvement in Rwandan affairs greatly enhanced the political and military capability of the French government to suppress the genocide. An important task would have been to inform the Security Council of the events in Rwanda, since few member states had independent or their own sources of information on the situation. New Zealand’s ambassador, Colin Keating for instance insisted: ‘We were kept in the dark … The situation was much more dangerous than was ever presented to the council … With better information the council might have proceeded quite differently’.97 Although the French staunchly defended the ceasefire policy, they now admit that ‘it is true that recognizing the genocide earlier would have led to establishing the responsibilities [stipulated by the Genocide Convention] and to calling into question the political line of the Security Council, which advocated a negotiated solution between the two parties’.98 Furthermore, the French government could have put more pressure on its former allies in the early days of the genocide. Instead, the evacuation of high-ranking officials and their families only enforced Paris’s support of the regime in Rwanda, as did the talks with the perpetrators of the genocide. Colette Braeckmann argues that a phone call from the African Unit at the Elysée was enough to save a certain number of civilians trapped in the Hotel des Mille Collines in Kigali.99 She therefore assumes ‘a fortiori that if the radical pressure would have been applied since the beginning, the worst could have been avoided’.100 In military terms, the French position was a complex one. The RPF made it clear that they would fight French troops if they returned to Rwanda. Still, the nature and scope of the atrocities demanded intervention of some kind, and RPF threats had not previously prevented heavy French involvement. The French General, Christian Quesnot,

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Mitterrand’s chief military advisor, asserted that combining UNAMIR and the evacuation forces would have contained the killings, if not stopped the genocide.101 In addition, France has the Légion étrangère, 8000 highly qualified troops that can be deployed without parliamentary approval, and the Force d’action rapide which is ‘capable of intervening at short notice almost anywhere in Africa from bases in France’.102 Alternatively, the French government could have supplied equipment to the troops who were willing to go to Rwanda under UN Resolution 918. A group of high-ranking generals concluded in 1997 at the Carnegie Commission on Preventing Deadly Conflict that ‘a modern force of 5000 troops, drawn primarily from one country and sent to Rwanda sometime between 7 and 21, April 1994, could have significantly altered the outcome of the conflict’.103 Intervention was a technical possibility that the French government was politically unwilling to pursue. Moreover, it must be underlined that ‘the failure to act cannot be attributed to ignorance’.104 The three criteria – knowledge, involvement, and capability – demonstrate that on the scale of bystanderness a high degree of responsibility can be ascribed to the French government. The individual actions and statements of government officials, who acted for the French government in May’s sense, make a meaningful ascription of responsibility possible with regard to the non-prevention of the Rwandan genocide. The French government’s responsibility concerning the 1994 Rwandan genocide is determined by its ignoring the nature of the atrocities committed in Rwanda, by its closeness to the regime despite the genocide being underway, and by its disregard of the opportunities to suppress the genocide.

Conclusion The French government’s role in Rwanda shows that it is necessary to hold governments responsible for inaction in the face of genocide. May’s theory of collective responsibility provides a meaningful framework to ascribe this responsibility to collective bystanders. In the case of the French in Rwanda, it allows one to portray the actions of individual officials in the light of governmental structures and policies. In other words, it supports the description of the government acting as an entity, through its officials. Thus, holding the French government responsible for failing to prevent or suppress the genocide in Rwanda becomes a meaningful conclusion. What is important is recognizing the responsibility of collective, external actors for the role that they play in genocide. Norman Geras is adamant about this role and insists that ‘to be indifferent is to stand condemned’.105

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When faced with genocide, state governments have duties as outlined in the Genocide Convention. This standard for evaluation represents a moral, and not just a legal code and outlines duties to prevent and suppress genocide. While state governments have these duties in light of the Genocide Convention, different external bystanders can be held responsible to different degrees for failing to fulfil these duties. The extent to which a collective external bystander can be held responsible for its actions and inactions are based on three criteria: knowledge, involvement, and capability. External bystanders should be urged to live up to the standard of the Genocide Convention in the prevention phase and when genocide is under way. Their retrospective responsibility can be evaluated according to the three criteria of bystanderness. The postHolocaust pledge ‘Never Again’ enshrined in the Convention has established special duties for state governments. External bystanders can be held responsible for not living up to these duties since, ‘unlike past generations, we do not have the excuse that we do not know the facts. With knowledge comes responsibility’.106 In relation to bystanders Geras summarizes this most succinctly: Such is the moral economy of bystanding. Simply by omission you contribute your share to producing an enormity of suffering. The direct responsibility, of course, will lie with others; with the authors of the misdeeds or as the case may be as well, with those upholding and enforcing conditions of grave oppression or wretchedness. Yet there is … a responsibility on all of those who know, even the most threatened of them.107 If genocide is to be prevented in future, bystanders cannot and should not be absolved of their responsibility. Even though French responsibility in the case of the genocide in Rwanda is not that of commission but of omission, it is important to acknowledge this responsibility in order to highlight the obligations that governments have to those who face extermination.

Notes * I would like to thank the participants of the BISA/ISA Joint Special Workshop, ‘Can Institutions have Morals?’, held at the University of Cambridge, 17–19 November 2000, for their constructive responses to an earlier version of this chapter. I am grateful to Daniel Warner and Christian Barry for their comments. Special thanks go to Toni Erskine for her valuable advice in redrafting this chapter.

178 Daniela Kroslak 1 P. A. Levine, From Indifference to Activism: Swedish Diplomacy and the Holocaust, 1938–1944 (Stockholm: Almqvist and Wiksell, 1996), p. 14. 2 For a more detailed analysis of the bystander see Levine; E. Staub, The Roots of Evil. The Origins of Genocide and Other Group Violence (Cambridge: Cambridge University Press, 1992); M. Stohl, ‘Outside of a Small Circle of Friends: States, Genocide, Mass Killing and the Role of Bystanders’, Journal of Peace Research, XXIV (1987) 151–66; P. M. Oliner et al. (eds), Embracing the Other: Philosophical, Psychological, and Historical Perspectives on Altruism (New York: New York University Press, 1992); J. Adler, ‘The Changing Attitude of the “Bystanders” Toward the Jews in France, 1940–43’, in J. Milfull (ed.), Why Germany? National Socialist Anti-Semitism and the European Context (Oxford: Berg Publishers, 1993), pp. 171–91; H. Fein, Genocide: A Sociological Perspective (London: Sage, 1993); S. P. Oliner and P. M. Oliner, The Altruistic Personality. Rescuers of Jews in Nazi Europe (New York: The Free Press, 1988); R. Hilberg, Perpetrators, Victims, Bystanders: The Jewish Catastrophe 1933–1945 (London: Secker & Warburg, 1995). 3 Representative of the misuse of the term is Eichmann’s plea to being a bystander during his trial in 1961. See H. Arendt, Eichmann in Jerusalem. A Report on the Banality of Evil (London: Penguin, 1994). 4 Oliner and Oliner, Altruistic Personality, p. 4. 5 Z. Bauman, Modernity and the Holocaust (Cambridge: Polity Press, 1991), p. 8. 6 T. Todorov, Facing the Extreme (New York: Metropolitan Books, 1996), p. 231. 7 Ibid., p. 231. 8 Staub, p. 169. 9 D. Warner, An Ethic of Responsibility in International Relations (Boulder and London: Lynne Rienner, 1991), pp. 32–3. 10 J. R. Lucas, Responsibility (Oxford: Clarendon Press, 1993), p. 24. 11 K. Baier, ‘Guilt and Responsibility’, in L. May and S. Hoffmann (eds), Collective Responsibility: Five Decades of Debate in Theoretical and Applied Ethics (Savage, Maryland: Rowman & Littlefield Publishers, 1991), pp. 197–218 (pp. 204–8). 12 This distinction is also made by Toni Erskine in the Introduction, p. 8. See also M. G. Velasquez, ‘Why Corporations Are Not Morally Responsible for Anything They Do’, May and Hoffmann, pp. 111–33 (p. 112). 13 Lucas, pp. 1–2. 14 Some authors maintain that responsibility also entails praise. For a use of the term similar to that employed in this chapter, see R. J. Wallace, Responsibility and the Moral Sentiments (Cambridge, Massachusetts: Harvard University Press, 1994). 15 See D. E. Cooper, ‘Collective Responsibility’, May and Hoffmann, pp. 35–46 (p. 42). 16 May and Hoffmann, p. 4. 17 L. May, The Morality of Groups: Collective Responsibility, Group-Based Harm, and Corporate Rights (Notre Dame, Indiana: University of Notre Dame Press, 1987), p. 44. 18 H. McGary, ‘Morality and Collective Liability’, May and Hoffmann, pp. 77–88 (p. 86).

Genocide in Rwanda 179 19 B. T. Wilkins, Terrorism and Collective Responsibility (London: Routledge, 1992), p. 103. 20 Erskine provides an account of French’s position in Chapter 1 of this volume. 21 May, p. 28. 22 May and Hoffmann, p. 9. 23 May, p. 24. 24 May, p. 28. 25 May, p. 2. 26 Wilkins, p. 106 and May, pp. 42–3. 27 R. Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (Washington, D.C.: Carnegie Endowment for International Peace, 1944). 28 Quoted in L. Kuper, Genocide: Its Political Uses in the Twentieth Century (Harmondsworth: Penguin, 1981), p. 23. 29 Quoted in S. Mendlovitz and J. Fousek, ‘Enforcing the Law on Genocide’, Alternatives, XXI (1996) 237–58 (p. 243). 30 As of 22 June 2002, see www.unhchr.ch/html/menu3/b/treaty1gen.htm. 31 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948. 32 C. Brown, ‘Human Rights’, in J. Baylis and S. Smith (eds), The Globalisation of World Politics. An Introduction to International Relations (Oxford: Oxford University Press, 1997), pp. 469–82 (p. 481). 33 Quoted in W. A. Schabas, Genocide in International Law (Cambridge: Cambridge University Press, 2000), p. 493. 34 Quoted in Schabas, p. 494. 35 See R. Lemarchand, Rwanda and Burundi (London: Pall Mall Press, 1970). 36 J. -C. Willame, ‘La panne rwandaise’, La Nouvelle Revue, XCII 12 (1990) 62–75 (pp. 64–5). 37 See M. Chossudovsky, ‘Economic Genocide in Rwanda’, Economic and Political Weekly, XXXI 15 (1996) 938–41. 38 See H. Dießenbacher, ‘Warum Völkermord in Ruanda?’, Leviathan, XXIII 2 (1995) 165–76. 39 See Lemarchand. 40 G. Martin, ‘Continuity and Change in Franco-African Relations’, The Journal of Modern African Studies, XXXIII (1995) 1–20 (p. 14). 41 For an account of the role of the West see L. Melvern, A People Betrayed. The Role of the West in Rwanda’s Genocide (London: Zed Books, 2000). 42 Mitterrand promulgated this new policy in his speech at the Franco-African summit in La Baule in June 1990. For its impact on Rwanda see for example J. -C. Willame, Aux sources de l’hécatombe rwandaise (Bruxelles: CEDAF 1995), p. 105. 43 See J.-P. Chrétien, ‘Le génocide du Rwanda’, Le Monde Juif, CLVII (1996) 16–26 (p. 83); J. -F. Bayart, ‘ “Bis repetita”: La politique africaine de François Mitterrand’, in S. Cohen (ed.), Mitterrand et la Sortie de la Guerre Froide (Paris: Presse Universitaire de France, 1998), pp. 251–93 (p. 257). 44 Assemblée Nationale, Mission d’Information commune, Enquête sur la tragédie rwandaise (1990–1994) (Paris: Assemblée Nationale, Dian-55/98, 1998), p. 134ff.

180 Daniela Kroslak 45 Commission Internationale d’Enquête (7–21 Janvier 1993), Rwanda. Violations massives et systématiques des droits de l’homme depuis le 1er Octobre 1990 (Paris: FIDH, February 1993). 46 See Libération, 9 February 1993. 47 UN Document E/CN.4/1994/7/Add.1, 11 August 1993. 48 R. Block, ‘The Tragedy of Rwanda’, New York Review of Books, XL 17 (1994) 3–8 (p. 4). 49 Médecins sans Frontières, Populations en Danger 1995. Rapport annuel sur les crises majeures et l’action humanitaire (Paris: La Découverte, 1995), p. 34. 50 Assemblée Nationale, Enquête Tome 3(1), p. 322. 51 J.-P. Chrétien, Le Défi de l’Ethnisme. Rwanda et Burundi: 1990–1996 (Paris: Karthala, 1997), p. 87. 52 Assemblée Nationale, Enquête Tome 1, p. 139. 53 Ibid. 54 H. Adelman and A. Suhrke, ‘Early Warning and Response: Why the International Community Failed to Prevent the Genocide’, Disasters, XX (1996) 295–304 (p. 299). 55 See especially S. Smith and A. Glaser, Ces Messieurs Afrique. Le Paris–Village du continent noir. (Paris: Calmann-Lévy, 1997) and S. Smith and A. Glaser, Ces Messieurs Afrique 2. Des réseaux aux lobbies (Paris: Calmann-Lévy, 1997). 56 Human Rights Watch, Slaughter Among Neighbours: The Political Origins of Communal Violence (New York: Yale University Press, 1995), p. 23. (Human Rights Watch hereafter HRW.) 57 Assemblée Nationale, Enquête Tome 1, p. 21. 58 M. McNulty, ‘France’s Rwanda débâcle’, War Studies Journal, II 2 (1997) 3–22 (p. 7). 59 Chrétien, Le Défi, p. 143 and A. Sibomana, Gardons espoir pour le Rwanda (Paris: Desclée de Brouwer, 1997), p. 72, n. 3. 60 S. Smith, ‘France-Rwanda: lévirat colonial et abandon dans la région des Grands Lacs’, in A. Guichaoua (ed.), Les crises politiques au Burundi et au Rwanda (1993–1994) (Lille and Paris: Université des Sciences et Technologies de Lille and Karthala, 1995), pp. 447–53 (p. 447). 61 International Panel of Eminent Personalities to Investigate the 1994 Genocide in Rwanda and the Surrounding Events (Organization of African Unity, 7 July 2000), paragraph 15.59. 62 Chrétien, Le Défi, p. 123. 63 Quoted in Human Rights Watch Arms Project, Arming Rwanda. The Arms Trade and Human Rights Abuses in the Rwandan War (New York: Human Rights Watch, 1994), p. 23. 64 G. Prunier, The Rwanda Crisis. History of a Genocide (London: Hurst, 1997), p. 110, n. 33. 65 Quoted in HRW, Arming Rwanda, p. 23. 66 See HRW, Arming Rwanda, p. 24; Chrétien, Le Défi, p. 124ff; African Rights, Rwanda. Death, Despair and Defiance (London: African Rights, 1995), p. 67. 67 Chrétien, Le Défi, p. 127; F. Reyntjens, L’Afrique des Grands Lacs en crise. Rwanda, Burundi: 1988–1994 (Paris: Karthala, 1994), p. 177; R. Brauman, Devant le Mal. Rwanda: Un Génocide en Direct (Paris: Arléa, 1994), p. 62.

Genocide in Rwanda 181 68 J.-C. Willame, L’ONU au Rwanda (1993–1995). La ‘Communauté internationale’ à l’épreuve d’un génocide (Paris: Maisonneuve et Larose, 1996), p. 93; Prunier, p. 110, n. 34; HRW, Arming Rwanda, p. 24. 69 Prunier, p. 164. 70 Quoted in Prunier, p. 178. 71 Prunier, p. 80. 72 Interviews, Paris September/October 1999. 73 Prunier, p. 177. 74 Adelman and Suhrke, p. 298. 75 Prunier, p. 165. 76 See HRW, Arming Rwanda. 77 Assemblée Nationale, Enquête Tome 1, p. 187. 78 UN Security Council Resolution S/RES/872 (1993), 5 October 1993. 79 Melvern, People Betrayed, p. 142. 80 Assemblée Nationale, Enquête Tome 1, p. 343. 81 UN document, S/1994/640, 31 May 1994, paragraph 32. 82 UN document, S/1994/640, 31 May 1994, paragraph 36. 83 UN document, E/CN.4/S-3/3, 19 May 1994, paragraph 14. 84 UN documents E/CN.4/1995/7, 28 June 1994; E/CN.4/1995/12, 12 August 1994 and E/CN.4/1995/70, 11 November 1994. 85 UN Document, E/CN.4/1995/7, paragraphs 14–16. 86 ‘Intervenir au Rwanda’, Libération, 16 June 1994. 87 See for example Assemblée Nationale, Enquête Tome 1, p. 263. 88 African Rights, p. 1104. 89 Assemblée Nationale, Enquête Tome 1, p. 343. 90 Prunier, p. 236. 91 Assemblée Nationale, Enquête Tome 1, p. 266. 92 A ‘Chapter VII’ mandate involves the possibility of the use of force according to Chapter VII of the UN Charter. Article 42 states that the Security Council ‘may take … action by air, sea, or land forces as may be necessary to maintain or restore international peace and security’. 93 UN Security Council Resolution S/RES/929 (1994), 22 June 1994. 94 Prunier, p. 296. 95 Human Rights Watch Arms Project, Rwanda/Zaire. Rearming with Impunity. International Support for the Perpetrators of the Rwandan Genocide (New York: HRW, May 1995), p. 3. 96 Prunier, p. 278, n. 136. 97 L. Melvern, ‘Genocide behind the Thin Blue Line’, Security Dialogue, XXVIII (1997) 333–46 (p. 338). 98 Assemblée Nationale, Enquête Tome 1, p. 292. 99 Note that efforts were made by the French and the UN to free those trapped in this hotel, which, after six weeks of threats and attacks, were realized. 100 C. Braeckman, ‘Le génocide au Rwanda: au-delà du bien et du mal’, Le Monde Juif, CLVII (1996) 6–15 (p. 9). 101 Assemblée Nationale, Enquête Tome 1, p. 350. 102 Martin, p. 13.

182 Daniela Kroslak 103 S. R. Feil, Preventing Genocide. How the early use of force might have succeeded in Rwanda (New York: Carnegie Commission on Preventing Deadly Conflict, 1998), p. 3. 104 Médecins sans Frontières, p. 40. 105 N. Geras, The Contract of Mutual Indifference. Political Philosophy after the Holocaust (London: Verso, 1998), p. 15. 106 Max Kapelman in L. F. Damrosch (ed.), Enforcing Restraint. Collective Intervention in Internal Conflicts (New York: Council on Foreign Relations Press, 1993), p. x. 107 Geras, p. 52.

10 The United Nations and the Fall of Srebrenica Meaningful Responsibility and International Society Anthony Lang, Jr*

Can the United Nations (UN) be held responsible for actions and/or outcomes in the international political system? Both supporters and critics of the UN certainly believe that it possesses the capacity to act and, as a result, be held responsible for those actions. Our normal way of speaking and thinking about international politics shares this assumption. To read any article about the UN in a newspaper is to see sentences such as ‘The UN is undertaking a program to eradicate poverty’ or ‘The UN has created a series of safe havens in Bosnia’ or ‘The UN has decided to allow the United States to pay its arrears over a period of five years’. These assumptions play a role in constructing the UN as a purposeful agent that initiates actions for which it can later be held responsible. But the mere fact that the UN has a certain capacity for action or that we talk about the UN in this way does not necessarily mean it can be held responsible for specific outcomes when it either exercises or neglects to exercise this capacity. Having the capacity for some action does not in itself entail that I have a duty to perform that action or that I can be blamed when I do not act. For example, while I can give to charity, the ability to do so does not make me responsible for the perpetuation of poverty when I do not. Also, the fact that our discourse assumes agency for certain entities does not make them morally responsible; for example, many responses to terrorism tend to hold states responsible because the discourse of international relations revolves in large part around state agency. While states may harbour terrorist organizations, their responsibility for the actions of those organizations is not always clear.

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Clearly, corporate agents like the UN raise important questions about agency, responsibility, and ethical evaluation. This chapter examines some of those questions by exploring the role of the UN in the fall of Srebrenica in July 1995. This tragic story cannot be blamed entirely on the UN, for numerous other agents share that responsibility (both corporate and individual).1 But exploring the concept of UN responsibility for this particular event reveals a series of overlapping layers of accountability in the international political system. It also allows us to examine in more depth the utility of an ethical analysis employing the concepts of agency and responsibility. In short, I argue that the UN can be held responsible, at least in part, for this tragedy. The responsibility of the UN revolves primarily around its construction of ‘safe havens’ that created the perception that it would defend the populations but then failed to do so. The Security Council contributed to this perception by passing resolutions without any ability to enforce them. The UN Secretariat and military command in the former Yugoslavia failed to authorize either close air support for the beleaguered Dutch peacekeepers or air strikes to coerce the Serb paramilitary forces, while simultaneously creating the impression of ‘defending’ the safe havens by the positioning of their equipment. The story of the fall of Srebrenica raises a number of questions about the responsibility of the UN, questions highlighted in the short narrative provided here.2 To substantiate the claim that the UN is in some way responsible for the fall of Srebrenica requires an examination of corporate responsibility, the focus of this volume. In the following section, I canvass three possible means by which corporate responsibility at the global level might be conceptualized, all of which connect the idea of ‘roles’ with responsibility: internal role creation; coerced role creation; and uncoerced role creation. The first approach draws on the work of Michael Barnett and Toni Erskine. The second approach draws on the philosopher Marion Smiley. And the third approach draws on the philosopher Peter Strawson. I argue that the idea of a role is the most important foundation for understanding how responsibility operates at the global level. I conclude that understanding the responsibility of the UN for the fall of Srebrenica requires a theory of corporate responsibility that draws on all three approaches.

Corporate responsibility Internal role creation In the first chapter of this volume, Toni Erskine provides a useful definition of corporate moral agency, which she draws primarily from the

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work of philosopher Peter French: A collectivity is a candidate for moral agency if it has the following: an identity that is more than the sum of the identities of its constitutive parts and, therefore, does not rely on a determinate membership; a decision-making structure; an identity over time; and a conception of itself as a unit.3 This definition, like others that address responsibility, focuses mainly on the internal characteristics of the agent. Erskine’s definition shares certain elements with the analytic philosophy approach to responsibility. Those approaches generally focus on the individual’s will and/or knowledge in ascribing responsibility for past actions.4 Translating that approach to corporate moral agents, however, requires more careful consideration, which Erskine and others provide. For individuals, internal characteristics include the mind, the will, and the emotions. For corporate agents, however, internal characteristics must include things like bureaucracy, constitutional structure, and/or social arrangements. One recent elaboration of corporate moral responsibility applied to the UN is Michael Barnett’s Eyewitness to Genocide: The United Nations and Rwanda. Based on his experience working in the UN Secretariat during the genocide in Rwanda, Barnett presents a sophisticated analysis of the ways in which bureaucratic culture shapes the roles that individuals adopt in the conduct of international affairs. A leading scholar of the constructivist approach, Barnett develops a theory of corporate responsibility that draws on the work of Max Weber and Hannah Arendt. He argues that individual actors in the UN cannot be held responsible for failing to act in Rwanda without placing their decisions and actions in the context of the bureaucratic culture within which they worked: The significance I attach to the moral universe at the UN leads me to construct a narrative that gives prominence to the ‘cultural landscape’: the discourse and the informal and formal rules that shaped the goals of the organization, the acceptable and unacceptable means to achieve those goals, and the meaning of ethical action at concrete moments. I want to consider how individuals offered different interpretations of these rules at different historical moments, and to recognize that they had some degree of autonomy that allowed them to appropriate rules and discourse for ulterior ends. This approach, in many ways, reverses the tack taken by prior accounts. To overstate matters: many of them tend to build an explanation for the UN’s

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failure from the ground up, beginning with the interests of the most powerful states in the Security Council that presumably shaped the council’s decisions and then introducing other actors and values as needed along the way. This perspective generates important insights that must be included in any record of the UN’s involvement. But it tends to undervalue how the broader culture in which these actors were embedded significantly shaped their outlook on the world.5 This focus on the internal characteristics of the UN and the way those characteristics shaped the roles adopted by different individuals plays an important part in understanding the fall of Srebrenica. Indeed, some of the same reasons for the failure to act in Rwanda played a role in the failure to act in Srebrenica. Barnett’s description of how the bureaucratic culture of the UN led to the failure in Rwanda provides us with important insights into how internal characteristics can create roles that we can use to hold agents responsible. In the analysis of Srebrenica, I draw on this theory to highlight how individual bureaucrats in the UN made key decisions that contributed to the fall of Srebrenica, decisions that arose in part from the ways in which the ‘culture’ of the UN shaped their views on their jobs.

Coerced role creation The creation of roles does not arise simply from the internal functions of institutions. They also arise, at least in part, from the social and political interactions that constitute the identity of those institutions. Those interactions construct agents as particular types of beings, beings who can be considered morally responsible.6 In other words, the constitution of moral agency should not be seen as something that arises purely from factors internal to an agent; it must also be understood as arising from the communities within which agents live. Marion Smiley has developed this point, as it relates to individual persons, in her book, Moral Responsibility and the Boundaries of Community.7 Smiley argues that moral responsibility cannot be a function simply of our assumptions about will and intentions. Rather, responsibility arises from two factors: one, the social roles that communities establish for individuals, determining whether or not they should be blamed for particular actions; and, two, the power relations that exist between individuals that allow some to blame others and, in so doing, reinforce or create anew those roles. Individual persons become blameworthy or praiseworthy because of the roles we create for them.

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For example, mothers are expected to conform to certain roles in terms of raising children, roles that can mean that they are deemed to be responsible for the faults of their children in ways that fathers may not be. Moreover, these roles become part of the public discourse we use to think about and act upon public problems. When reports recently appeared arguing that children raised by stay at home parents tend to have fewer social problems than those who attend day care, the automatic assumption in the political discourse is that this ‘proves’ that working mothers can be blamed for their children’s defects. Such an assumption ignores the ways in which the role of ‘mother’, while certainly physical in part, is also a socially constructed role. Moreover, the ways in which we blame and praise will not simply affect the individuals at that moment, but will also have a long-term influence on how we construct the role of mother. We can meaningfully blame and praise individual mothers for actions in raising children, but we need to be aware of how such statements of blame and praise rely upon and recreate certain roles that partly determine the ways in which we hold mothers responsible. Smiley’s analysis demonstrates how power structures create roles for individuals that lead to attributions of responsibility. At the global level, her analysis provides an important insight into how institutions of global governance may have roles ‘imposed’ on them by the more powerful members in the system. In the case of the UN, while the roles arise in part from the bureaucratic structures and constitutional provisions that describe the institution, they also arise in part from the decisions and non-decisions of member states. The power of the five permanent members of the Security Council in authorizing UN missions cannot be overlooked. In the sections that follow, I argue that the Security Council’s inability to pass meaningful resolutions, while member states seemed to assume that the UN would solve the problem of Srebrenica, demonstrates how the power to impose roles needs to be taken into account in understanding responsibility.

Uncoerced role creation Responsibility, then, arises from both the roles that institutions impose on themselves and the roles that are imposed on them by more powerful agents in the systems they inhabit. A final source of role creation that I wish to propose is what I call ‘uncoerced role creation’. While agreeing with Smiley that power relations play an important part in the way that roles are created, I would suggest that some roles result from a

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combination of internal and external sources. These roles can be seen as not necessarily being imposed from the outside, but rather as resulting from a shared understanding of how individuals should live together in a community. To understand this process, one of the classic accounts of responsibility provides a useful way to consider the relationship between agents and how this relationship creates roles. In 1963, Peter Strawson presented an analysis of responsibility in his lecture ‘Freedom and Resentment’.8 He begins with a debate about the consequences for human behaviour of determinism. The thesis of determinism – the belief that all actions are determined prior to their taking place and that human beings have no control over those actions in ways that are morally relevant – impacts our understanding of moral responsibility at its core because if determinism is true the concept of responsibility makes no sense. Strawson seeks to prove that, even if determinism is true, responsibility still has a role to play in our interpersonal relations. Rather than explore in depth the meaning of determinism – a task that neither I nor Strawson find useful – he proposes a rather novel way to hold on to the concept of responsibility. Strawson argues that responsibility must be seen in light of (t)he very great importance we attach to the attitudes and intentions toward us of other human beings, and the great extent to which our personal feelings and reactions depend upon, or involve, our beliefs about those attitudes and intentions.9 Strawson proceeds to argue that these attitudes and intentions towards others depend very much on the assumption that other human beings can be held responsible for their actions. To assume that determinism is true is to adopt what Strawson calls an ‘objective’ rather than a ‘participant’ attitude towards another human person. And, to do so is to see him, perhaps, as an object of social policy; as a subject for what, in a wide range of senses, might be called treatment; as something certainly to be taken account, perhaps precautionary account, of; to be managed or handled or cured or trained; perhaps simply to be avoided … But it cannot include the range of reactive feelings and attitudes which belong to involvement and participation with others in inter-personal human relationships; it cannot include resentment, gratitude, forgiveness, anger, or the sort of love which two adults can

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sometimes be said to feel reciprocally. If your attitudes toward someone is wholly objective, then though you may fight him, you cannot quarrel with him, and though you may talk to him, even negotiate with him, you cannot reason with him. You can at most pretend to quarrel, or to reason, with him.10 Strawson’s thesis challenges us to consider how interpersonal relations need to be considered when thinking about moral concepts. One could analyse the concept of responsibility without even considering these relationships, but to do so would undermine the central purpose of responsibility in many of our relationships – the ability to react towards others as real persons and not as subjects of logical analysis and public policy. Even more importantly, Strawson argues the converse of Smiley. Smiley is claiming that without community, responsibility makes no sense. Strawson is making the more interesting claim that without responsibility, communities make no sense. In other words, if the concept of responsibility did not exist, we could not have meaningful interpersonal relationships and, ipso facto, we could not have meaningful societies and political communities. In a sense, Strawson is telling us that without some notion of responsibility, social and political interactions could not exist. This conclusion helps us to see how members in a community, whether at the domestic or international level, may adopt certain shared roles in an uncoerced, and perhaps even unconscious way. Strawson suggests that the adoption of the roles that lead to responsibility might derive from our shared need to have meaningful personal interactions that sustain us emotionally. I do not wish to make the point that the other agents in the international system need the UN as an emotional partner! Rather, I draw from Strawson the conclusion that the UN’s role in the international system derives in part from a very real need to have institutions that transcend immediate national self-interests. While the UN cannot always accomplish the roles so many of us give to it, its very existence provides the international community with a certain hope for the peaceful resolution of conflict. This hope has played a role in constructing the UN as an agent that we can and do hold responsible when conflicts turn violent. Responsibility, then, must involve a social and political element, that is to say, that the practice of blaming and praising are part of a set of relationships within particular communities. More importantly, some notion of responsibility is necessary for society and polity to function in meaningful ways.

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The fall of Srebrenica In order to evaluate whether or not it makes sense to understand the UN as an agent that can be held responsible for certain actions and outcomes, I turn now to a specific event for which many in the international community do hold the UN responsible in some sense. Indeed, the UN has placed some of the blame for this event on itself. To see whether or not this makes sense, we need to provide a narrative of what happened. On 15 November 1999, the UN released a report on the fall of Srebrenica. Exactly one month later, on 15 December 1999, the UN released a report on the genocide in Rwanda. Unlike the typical UN report, these two documents made a rather radical admission: the UN itself was partly to blame for the deaths of over 10 000 people in Srebrenica and 800 000 people in Rwanda. As the report on Srebrenica put it: The international community as a whole must accept its share of responsibility for allowing this tragic course of events by its prolonged refusal to use force in the early stages of the war. This responsibility is shared by the Security Council, the Contact Group and other Governments, which contributed to the delay in the use of force, as well as by the United Nations Secretariat and the mission in the field.11 The report on Srebrenica provides a narrative, in excruciating detail, of the events that led to the slaughter of more than 10 000 men and boys who were trapped outside the city during July 1995. The characters in the story – member states, the Security Council, the Secretary General, the Secretariat, the Force Commander of the Bosnian mission, the United Nations Protection Force (UNPROFOR) Commander in the region, and the Dutch battalion who were on the ground – all made mistakes that led to the tragic outcome. This is not the place to describe the history of the Balkan conflicts. In fact, the choice of where to start such a narrative presents moral and political complications. Did the Balkan conflicts start in 1991 with the break-up of Yugoslavia? Did it start in 1980 with the death of Tito? Did it start in 1914 with the outbreak of World War I? Or did it start in the fourteenth century when the Turks fought the Slavs? Different participants in the conflict begin their narratives at these and many other points. To choose one is to enter into a minefield of competing historical claims, a minefield this chapter will seek to avoid.

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This section focuses on events in and around Srebrenica, a city in eastern Bosnia. At the time of a 1991 census, the population of the city was roughly 37 000 of which 73 per cent were Bosniacs and 25 per cent were Serbs. This chapter focuses on events in the greater Srebrenica region from 1993 through the massacres that took place after Serb forces took over the city on 11 July 1995. In the aftermath of that military victory, the UN has estimated that the Serbs killed over 10 000 men and boys in a systematic process of ethnic cleansing. It was on account of this massacre that on 16 November 1995 General Ratko Mladic and Bosnian Serb leader Radovan Karadic were indicted by the International Tribunal for the former Yugoslavia. The conventional accounts of the conflicts between the different groups in the Balkans start in June 1991 when the republics of Croatia and Slovenia declared their independence from Yugoslavia. Fighting between the new republics and the Serb-dominated Yugoslavia soon followed. On 21 February, the UN Security Council approved Resolution 743 that created the UNPROFOR to enforce a peace plan between Croatia and Yugoslavia brokered by Cyrus Vance (the ‘Vance Plan’). The force was headquartered in Sarajevo, the capital of the still Yugoslavian Republic of Bosnia and Herzegovina. The conflict changed when the Republic of Bosnia and Herzegovina was recognized by Germany and the United States in April 1992. The ethnic diversity of Bosnia and Herzegovina soon degenerated into conflicts between Bosnian Muslims (Bosniacs), Bosnian Serbs, and Bosnian Croats, with the latter two being covertly and overtly supported by their ethnic compatriots in the neighbouring republics. In January 1993, the Vance-Owen plan was presented to the three Bosnian communities in an attempt to create a constitutional structure for the Republic. Although it was only approved by the Croat community, it remained the model underlying much of the international community’s future efforts. In early 1992, Serb military groups took control of Srebrenica, despite the fact that they were a minority. By May 1992, however, the Bosniacs had taken back control, but with a disorganized military and political command structure. The conflicts among the Bosniac groups in Srebrenica undercut their ability to resist Serb advances over the next three years. During this operation, the UN report notes that the Bosniac forces ‘used techniques of ethnic cleansing similar to those used by the Serbs in other areas, burning houses and terrorizing the civilian population’.12 By March 1993, the Serb forces had taken back Srebrenica and the surrounding areas. Concerns among the Bosniacs that they would be

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abandoned by the international community prompted them to hold hostage the Commander of UNPROFOR in Srebrenica. On 13 March after they agreed to allow him to leave, the commander ‘addressed a public gathering in Srebrenica, telling them that they were under United Nations protection and that he would not abandon them’.13 Soon thereafter, prompted by member states in the non-aligned movement, the Security Council passed a series of resolutions that created ‘safe havens’, a process I describe in more detail below. In August 1993, Serb forces improved their strategic position near Sarajevo, leading the Bosniac leadership to pull out of peace negotiations with the Serbs and Croats. This led to a showdown with the UN and NATO that created a ‘dual key’ arrangement for the use of air power. The arrangement dictated that the use of air power could only be authorized if the UNPROFOR commanders, the UN Secretary General, and NATO leadership agreed. An important point of disagreement arose between them that would later affect the use of air power. The UN leadership felt that air power should only be used as ‘close air support’, meaning bombs should only be used on the battlefield when requested by the military commanders on the ground. NATO leaders believed that for air power to be effective, ‘air strikes’ should be used against a wider range of targets for political purposes. In February 1994, after a Sarajevo marketplace was bombed by the Serbs, the NATO leadership wanted to employ air strikes against the Serbs, but the UNPROFOR commander refused to authorize it. The lack of agreement between the different parts of the ‘dual key’ structure may have contributed to the failure to deter the Serbs at crucial points. Air strikes were authorized in April 1994 and in November 1994, but only after much wrangling between the parties. In May 1995, approximately 400 UNPROFOR troops were taken hostage by Bosnian Serb forces. As a result, the Secretary General issued a report in which he argued that the safe haven concept was not working because the UN Security Council refused to authorize the proper amount of troops to carry out the mandate. He also argued that the air strikes that had been used thus far were not convincing the Serbs to change their policies and were further destabilizing the conflict. His most important point in the report was that the Security Council was using force in a way that contradicted the concept of peacekeeping.14 At the same time, France and the United Kingdom proposed the creation of a rapid reaction force to bolster the strength of UNPROFOR. Despite this suggestion, the UN leadership preferred to consider the troops as ‘theater reserve troops’ in order to avoid the creation of an offensive military capability. On 19 June 1995, the UN special representative

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undercut the force of the proposal by issuing a letter to the Serbian leadership that stated that the new force ‘would not in any way change the essential peacekeeping nature of the UNPROFOR’.15 At the same moment the new force was being debated, the Serb forces made their move against the city of Srebrenica. In June and July 1995, there were approximately 300 Dutch infantry troops accompanied by 300 support troops in the vicinity of Srebrenica. The Serb forces in the area numbered about 2000 while the Bosniac forces were at about 3000. The Bosniacs, however, were largely disarmed and had a very weak command structure. There had been fighting between the Serbs and Bosniacs throughout the first six months of 1995, while the Dutch troops were positioned primarily in order to observe the ostensible cease-fire. The UN troops were located in seven man observation posts at various locations surrounding the city of Srebrenica. On 6 July 1995, the Serb forces launched their attack on Srebrenica. As they progressed towards the city, the Serb forces attacked many of the observation posts of the UNPROFOR forces. The Dutch commanders at first surrendered their posts, but then began calling for close air support through the UNPROFOR command centres in Zagreb and Sarajevo. The response of the UN military command to these requests left the Dutch forces without support for five crucial days, resulting in an emboldened Serb force. I explore below the events surrounding these requests for air support. Srebrenica fell to the Serb forces on 11 July. Over the course of the next three days, the Serb forces, watched by the UNPROFOR troops, transported all women and children out of Srebrenica. In so doing, they separated out all males aged 16 to 65. Over the course of the next week, over 10 000 of these men were systematically killed by Serb forces.

Responsibility and the fall of Srebrenica Who is responsible for the slaughter of the 10 000 citizens of Srebrenica? The obvious answer to this question is the Bosnian Serb leadership and soldiers who carried out the killings. The International Criminal Tribunal for the former Yugoslavia has played an important role in highlighting that responsibility.16 The trauma of this event is exacerbated by the fact that the UN had devoted a considerable amount of time to this conflict and actually had peacekeepers on the ground. To understand how a more comprehensive analysis of the apportioning of responsibility for this tragedy might contribute to our understanding of it, let me return to two particular elements of the UN’s role in the fall

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of Srebrenica. First, the Security Council’s failure to understand events on the ground and subsequent failure to enact meaningful resolutions. Second, the UN military command’s failure to authorize close air support in order to defend the beleaguered Dutch peacekeepers on the ground, a failure which may have emboldened the Serbs to further their slaughter of Muslims. These two elements of the story cannot explain entirely the fall of Srebrenica and the subsequent slaughter of the Muslim population. They did, however, play an important role in enabling the Serb actions.

The Security Council In 1993, the international community sought to respond to the developing tragedy in the former Yugoslavia. As the Security Council debated various options, the International Committee of the Red Cross (ICRC) proposed the concept of ‘safe havens’, an idea that was pursued by Austria in the Security Council. In April 1993, the High Commissioner for Refugees recommended one of two options: creating a space protected by the UN where aid could be provided or massively evacuate all residents of Srebrenica. As a result of this report, the non-aligned members of the Security Council, led by Pakistan and Venezuela, tabled a resolution to create a safe haven. But, while debate about this resolution was taking place, the Serb forces informed the UN personnel in Srebrenica that they would be attacking unless the Muslims retreated. To add confusion, certain representatives argued that their national sources were telling them that Srebrenica had already fallen. The Security Council passed Resolution 819 on 16 April 1993 which demanded ‘that all parties and others treat Srebrenica and its surroundings as a safe area which should be free from any armed attack or hostile act’, even though the Secretariat and the Secretary-General advised against this idea. Concerns about the safe haven concept ranged from the belief that non-safe havens would become areas of open conflict to the possibility that the UNPROFOR forces would be unable to protect the havens. In response to the latter concern, Resolution 819 was directed at the parties in the conflict and did not change the mandate of UNPROFOR. It was not until the passage of Resolution 836 on 1 June 1993 that the mandate of the force was changed to ‘deter attacks against the safe areas’. Extensive debate followed the passage of this resolution, in which it was pointed out that the UN forces were not mandated to ‘defend’ or ‘protect’ the safe havens. After the passage of Resolution 836, the Secretary-General reported that in order to effect a change in the mandate of UNPROFOR, there

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would need to be at least 34 000 troops. Rather than follow the advice of the Secretary-General, however, the Security Council only authorized a force of 7600 soldiers in Resolution 844. Furthermore, none of the Security Council permanent members offered any troops for the force. When Nordic troops were asked to replace the Canadians who had been serving there, the government of Sweden blocked their deployment. To fulfil the mandate, a Dutch battalion was finally sent in January 1994. As the UN report makes clear, the Security Council not only did not understand what was happening on the ground, they may have made it worse by introducing and continuing to push the concept of the ‘safe havens’. The Security Council continued to pass various resolutions that did not reflect the realities on the ground. More importantly, their instructions to the forces on the ground in Bosnia often caused more confusion than clarity. But note that the idea of ‘safe havens’ and the assumption that the UN would enforce them came from an NGO – the International Committee of the Red Cross (ICRC) – and a state – Austria. These two agents in the international system thus contributed to the construction of the UN’s role in this conflict. In so doing, they played the role of ‘participants’ as Strawson describes them: fellow members of a community who impart roles on key agents. The UN took on these roles through the actions of the Security Council. Resolution 819, while condemning the Serbs and demanding that they halt their attacks, did not provide any means to enforce the safe haven concept. It included a rather lamely worded phrase in which the Secretary-General was ‘to take immediate steps to increase the presence of UNPROFOR in Srebrenica and its surroundings’. This phrase, while expressing an admirable intention, did not provide the means to actually enforce such a suggestion. More importantly, Resolution 819 was one of the first to create a safe haven without any means for enforcing it. Even the commanders of UNPROFOR recognized that the resolution would only hamper their ability to aid the Muslims. As can be seen from the events surrounding the passage of this one resolution – which typifies the activities of the Security Council – the veto power is not solely to blame for this badly worded and poorly thought-out resolution. The resolution can be seen as resulting from a combination of the structure of the Security Council and the expectations put upon it, or its roles. Different actors indicated in their reports to the Security Council that it should be the institution that resolves this problem. The ICRC and the Secretary-General, admittedly for different reasons, both looked to the Security Council as the place where a large

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troop deployment should be authorized. The roles that these actors, and many others, assumed for the UN was the protector of the weak by means of military force. Yet, the decision-making structure of the Council militated against the role of protecting the weak. The fact that non-aligned states pushed hardest for the safe haven concept is an important indication of this. The permanent members also bear responsibility for these resolutions. Rather than seek to blame particular states, however, I am trying to emphasize here that the structure of the Security Council, along with the expectations put on it by members of the international community, led to resolutions like 819. In trying to remain neutral while also trying to stop conflict, the Security Council was placed in a role in which it actually passed resolutions that did more harm than good. No single state, but the structure and role of the Security Council as a whole, was responsible for the passage of safe haven resolutions that led to more problems than solutions.

Air support Another event also reveals the way in which the UN can be considered responsible for the fall of Srebrenica. From 6 July through 10 July the leadership of UNPROFOR told the troops to pull back from their locations and not expect air support. On 11 July the UN command recommended the use of air strikes, more than the simple close air support that the Dutch troops had been expecting. In the early morning of 11 July they retreated into their bunkers awaiting air strikes against the 40 targets in the region they had identified and radioed to the UN command. For reasons that still remain unclear, this request was not delivered to the fighter planes, which were in the air waiting for instructions. The confusion over the air strikes persisted for three hours on the morning of 11 July. The three primary UN commanders in the region were: (1) Yasushi Akashi of Japan, the Special Representative of the Secretary-General for the former Yugoslavia and Head of Mission there; (2) Lt. Gen. Bernard Janvier of France, who served as the Military Commander of UN forces in the former Yugoslavia, headquartered in Zagreb, also known as the Force Commander; and (3) Lt. Gen. Rupert Smith of the United Kingdom who served as the Military Commander of the UN forces in Bosnia Herzegovina, headquartered in Sarajevo, also known as the UNPROFOR commander. In a footnote in Annex I of the UN report, it states: ‘The UNPROFOR Commander [Smith] reported directly to the Force Commander [Janvier]. Both were under the authority of the

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Special Representative of the Secretary General [Akashi].’ This division of authority is important to note for two reasons. One, responsibility in military situations often depends very much on who is in command; indeed, war crimes trials often hinge on this question. Two, the events that transpired in July 1995 depended very much on decisions made by Akashi and Janvier, decisions that had disastrous consequences. In the summer of 1995, the Dutch peacekeeping forces were stationed in small observation posts surrounding the city of Srebrenica. These posts usually had no more than ten soldiers with limited weapons. They were not designed to be defensive positions protecting the safe havens but rather observation posts that were to report on violations of human rights committed by either side. This distinction is important because it seems to undermine the notion that the soldiers could have protected or defended the safe haven of Srebrenica. The very concept of a ‘safe haven’ would seem to require some sort of protection. But, that protection was not part of the UN’s mandate. At the same time, however, by positioning military personnel on the perimeter of a besieged city, the UN gave the distinct impression of being there to protect the city. This confusion played a key role in the failed expectations and slaughter that occurred in July 1995. In the course of the Serb attack of 6 July paramilitary forces overran a number of the observation posts set up by the Dutch peacekeepers. As a result, the Dutch commanders requested close air support, which was designed to attack specific Serb targets in order to stop the attack. On 8 July the UNPROFOR headquarters discouraged the request for air support, instead advising the Dutch battalion to withdraw to more secure positions. Requests were made repeatedly from 7 July through 10 for air support, and in every case they were turned down by the UN commanders. Some in the leadership of the overall Force Command and the UNPROFOR command believed that both the Serbs and the Bosniacs in Srebrenica were firing upon the Dutch peacekeepers, the former to enable their attack on the city and the latter to ensure that the peacekeeping force did not leave. This belief became part of the report that the Special Representative presented to the Security Council and Secretary-General. In that same report to the Security Council, Special Representative Akashi did not report the many requests that the Dutch forces had made for close air support to the UN command. The UN report claims that this was because the Special Representative did not know about these requests. Throughout the day of 10 July the Dutch forces were under continuous attack by the Serbs. During that same day, the different levels of command in the UN system were debating the utility of air support. On the morning of 11 July the Dutch forces on the ground in Srebrenica

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awoke expecting close air support to be launched against the Serb heavy weapons that were shelling them. At around 2 : 30 in the afternoon, two Royal Dutch Air Force F-16 planes dropped a small number of bombs on Serb tanks outside Srebrenica. They departed a short while later and no other planes followed. In his book, Endgame, David Rhodes provides an account of the bombing based on interviews with members of the UN command system and Bosnians on the ground. Two facts stand out from Rhodes account. First, it appears that the Bosnian Muslims and Bosnian Serbs both believed that once NATO planes began launching air strikes, this was an indication that the international community was finally going to protect Srebrenica and the other safe havens. Many of them, both Serbs and Muslims, recalled the UN Commander in Bosnia, General Philippe Morillon, standing up in Srebrenica on 12 March 1993 and boldly declaring, ‘You are now under the protection of the UN. I will never abandon you’, followed by the raising of the UN flag.17 While that statement did not necessarily reflect the wishes of the member states, the Security Council, or the Secretariat, it certainly had a profound effect on those on the ground. After the two planes departed, many Muslims believed that the bombs were smoke bombs or part of a training exercise. In fact, the bombs were not laser guided but were ‘free-fall’, less effective than other weapons NATO held. As one Muslim told Rhodes, no new Morillon would save them.18 Even the UN report shares this conclusion. On 9 July UN military observers reported that the Dutch positions were being overrun by the Serb paramilitary forces. The report noted that the aims of the Serb paramilitary forces may have even increased when they saw that the UN forces were not responding. The final UN report notes that Documents later obtained from Serb sources appear to suggest that this assessment was correct. Those documents indicate that the Serb attack on Srebrenica initially had limited objectives. Only after having advanced with unexpected ease did the Serbs decide to overrun the entire enclave. Serb civilian and military officials from Srebrenica have stated the same thing, adding, in the course of discussions with a United Nations official, that they decided to advance all the way to Srebrenica town when they assessed that UNPROFOR was not willing or able to stop them.19 The fact that the combatants in this conflict believed that a real commitment by the UN or the international community would have

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stopped the conflict can be seen as only one group’s opinion. But, it does indicate that the impression of all sides on the ground relied on the actions of the UN. This means that the failure to provide air strikes was not simply a tactical error but may have played a much more important role in the fall of Srebrenica and the subsequent slaughter of the Muslims. The second fact that emerges from Rhodes’ account, more important for the argument that I am making here, concerns the responsibility of the two UN commanders who refused to authorize the strikes and only did so at the last moment. Lt. Gen. Bernard Janvier, the UN Commander of all the forces in the former Yugoslavia, and Ambassador Yasushi Akashi, the Secretary-General’s Representative in the former Yugoslavia, strongly opposed the use of air strikes against the Serbs. In 1994, General Rupert Smith, the UN commander of forces in Bosnia, used air strikes against Bosnian Serbs in order to force them out of Sarejevo. The Serbs, instead of backing down, took 350 UN peacekeepers hostage. As a result, Akashi pushed hard for a change in the UN guidelines that permitted the use of air strikes. Both Akashi and Janvier saw Smith’s attempt to coerce the Serbs through air power as antithetical to the UN’s mandate.20 Rhodes believes that Akashi and Janvier ‘bear the brunt of responsibility for the lack of NATO close air support’.21 In interviews with Rhodes, Akashi and one of Janvier’s deputies (he himself refused to be interviewed) pointed out that they had very little guidance from New York. But, they also reflected a UN mindset that believed in impartiality, non-use of force, and diplomacy at all costs. As Rhodes says of Akashi: A thirty-three year UN veteran, Akashi was an adamant adherent of traditional peacekeeping. Any hint of taking sides or using force against one side was anathema to the bright, but single-minded Japanese diplomat with a dry sense of humour. One aide went so far as to call Akashi a ‘peacenik’.22 While other explanations could be offered for the caution of both Janvier and Akashi, it is certainly plausible to argue that they were influenced by the culture of the UN, a culture in which using air power to coerce an opponent is not the norm. One could argue, as Rhodes seems to do, that the individual commanders bear the brunt of responsibility for the failure to provide air support. Responsibility rests in part on the shoulders of individuals. At the same time, those individuals were profoundly shaped by the institutional culture in which they operated. Even if the UN Secretary-General did not

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provide orders to Akashi or Janvier, in their actions they did embody many of the precepts that have guided the UN in its history. Especially when it comes to an organization like the UN, where military command is not as clearly delineated as it is in a national military, factors like organizational culture will play an important role in determining actions, and, thus, responsibility.

Conclusion This chapter has sought to establish the responsibility of the UN as a corporate agent in the fall of Srebrenica. In highlighting the role of the Security Council and the UN military command, I do not mean merely to argue that the UN should be held responsible for the fall of Srebrenica, although this is true in part. I have tried to highlight both how the roles attributed to the UN as a whole create certain expectations about what should be done by that institution, and, moreover, that these roles were unfulfilled in the fall of Srebrenica. The roles that created the responsibility of the UN for the fall of Srebrenica reflect all three modes I suggested above. In the case of Janvier and Akashi, their idea of what it means to be a UN official were the product of the UN culture that Barnett describes in his work. In the case of the Security Council and its inability to pass meaningful resolutions, the powerful and even not so powerful member states and NGOs that created the idea of safe havens imposed certain roles on the UN that it could not execute. The two elements of the fall of Srebrenica that I have highlighted here reflect the three types of role creation that I introduced in the first part of the chapter. Recall that Strawson argues that responsibility is important for our normal modes of interaction because without it we could not meaningfully interact with other persons. Strawson further suggests that without responsibility, political community does not make much sense. If we agree that there is such a thing as an ‘international community’, one in which different types of agents engage in meaningful forms of interaction, we would need to agree that those agents can be held responsible for their actions. This international community contains a number of different types of agents, the most prominent ones being nation-states, in that legal rules governing sovereignty, diplomacy, and war give them the pre-eminent status. But other agents also interact in a meaningful way at the international level, including non-governmental organizations, multinational corporations, international organizations and individual persons.

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The UN is occasionally seen by some as the governing structure of the entire system, but this is not legally or practically correct. The UN has become one of many agents at the international level, some of which interact within the structures of the UN and some of which compete with or fight with the UN.23 In order for the UN to meaningfully interact with these other agents, we must be able to hold it responsible for certain actions. This chapter has explored how not simply individual member states in the Security Council or individual persons in the UN military command contributed to the fall of Srebrenica. While states and persons share the responsibility for this tragedy, the UN qua institution should be seen as responsible as well. That responsibility comes from two primary sources: the internal process of role adoption and an external process of role imposition. Both of these sources are to be found in a comprehensive analysis of the fall of Srebrenica. Admittedly, the UN failed to fulfil the roles it has been given by members of the Security Council. The UN’s responsibility as I have described it here is partly ascribed to it by members of the international community who want to deflect responsibility from themselves. The UN has become a site where the problems of the international system should be solved, but most refuse to restructure it in order to accomplish those roles. The failure of the great powers is especially important to consider. When the United States demands that the UN cut back on its expenditures, the institution will not be able to accomplish its objectives. And, when China and Russia refuse to give the UN any autonomy in regards to human rights issues, they also undermine its ability to fulfil the role of protecting the rights of all. But, outside agents are not the only ones to blame. The very fact of issuing the reports on Srebrenica and Rwanda indicates that the UN bureaucracy believes that the institution should be held responsible for the consequences of its actions and inactions. It has also sought to reform itself. This is evident in its authorizing studies and seeking to refashion itself to respond to international emergencies. In part, the UN itself is creating the roles that it may be incapable of fulfilling. The combination of these sources of role adoption should not lead us to ignore the fact that many of us ‘need’ the UN to adopt the roles it does. This is perhaps closest to the sense in which Strawson describes the source of responsibility. Our need for an institution that can be held responsible for the failure of peace and security in the international system may not be a fair basis for blaming the UN. What it may suggest, however, is that all of us need to think harder about how to enable the UN to fulfil the roles that we continue to give it.

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Notes *

I wish to thank the following for comments and discussion on this chapter: Joel Rosenthal, Christian Barry, Kenneth Scheve, Colette Mazzucelli, and all the participants in the 2001 National Endowment for the Humanities Summer Seminar, ‘Supranationalism: The Ethics of Global Governance’ to whom I presented an earlier draft of this chapter. Thanks especially to Toni Erskine for her help in numerous revisions of this chapter, all of which greatly improved its quality.

1 Since this chapter has been written, a report commissioned by the Dutch government concluded that the Netherlands and the UN share responsibility for the fall of Srebrenica. The report, prepared by the Netherlands Institute for War Documentation, led to the fall of the Dutch government. The report’s conclusions will certainly raise further questions about how responsibility is distributed among different agents at the international level. See http://www.srebrenica.nl/en/a_index.htm. 2 The term ‘responsibility’ is often used in two different, but overlapping ways: responsibility is retrospective when it connects an agent to specific actions and events in the past; responsibility is prospective when it refers to specific obligations or duties that an agent has in light of the roles that agent adopts in a social and political system. Toni Erskine, who pointed out my casual use of the two meanings, clarifies in more depth the difference between these uses in her introduction to this volume. My argument, that the retrospective element of responsibility arises, in part, from the roles that a community ascribes to an agent, connects these two meanings. Rather than note the different meanings in every usage in this chapter, I assume the reader will see that, for me, these meanings overlap in an important way. 3 T. Erskine, Chapter 1, p. 24. 4 See J. M. Fischer. (ed.), Moral Responsibility (Ithaca: Cornell University Press, 1986) and J. M. Fischer and M. Ravizza (eds), Perspectives on Moral Responsibility (Ithaca: Cornell University Press, 1993), for a selection of some of the debates within the analytic philosophy tradition. 5 M. Barnett, Eyewitness to Genocide: The United Nations and Rwanda (Ithaca: Cornell University Press, 2002), p. 6. 6 For similar points, see the arguments made by Mervyn Frost and Rebecca DeWinter in Chapters 5 and 8 of this volume, respectively. 7 M. Smiley, Moral Responsibility and the Boundaries of Community: Power and Accountability from a Pragmatic Point of View (Chicago: University of Chicago Press, 1992). 8 My use of Strawson here should not be taken as an indication that I am taking a position on philosophical debates on free will, compatablism, or determinism. These debates are ongoing in philosophy. I find Strawson useful less because of his position in these debates and more because of his broader notion of responsibility as being linked to the perceptions of others. 9 P. Strawson, ‘Freedom and Resentment’, Proceedings of the British Academy, XLVIII (1962) 1–25 (repr. in John Martin Fischer and Mark Ravizza (eds), Perspectives on Moral Responsibility (Ithaca: Cornell University Press, 1993), p. 48).

The Fall of Srebrenica 203 10 Strawson, p. 52. 11 Report of the Secretary-General pursuant to General Assembly resolution 53/35: The Fall of Srebrenica, Document A/54/549 (New York: United Nations, 1999), paragraph 501. Because part of my argument concerns the presentation of the UN in this report, the bulk of this section is drawn from information in it. Other works consulted include J. Honig, Srebrenica: Record of a War Crime (London: Penguin, 1996); L. de Barros-Duchene, Srebrenica: Histoire d’un crime international (Paris: L’Harmattan, 1996); and D. Rhodes, Endgame: The Betrayal and Fall of Srebrenica (New York: Farrar, Strauss, Giroux, 1997). Rhodes’ account provides an even-handed narrative of the conflicting perceptions of UN officials, Dutch peacekeepers, Serb paramilitary forces, and, especially, Muslim victims. 12 The Fall of Srebrenica, Paragraph 35. 13 The Fall of Srebrenica, Paragraph 38. 14 Report of the Secretary-General to the Security Council, S/1995/444, 30 May 1995. 15 The Fall of Srebrenica, Paragraph 219. 16 The recent prosecution of General Radislav Krstic, the commander of the Drina Wolves, one of the Serb paramilitary units responsible for the deaths at Srebrenica, is an important step in assigning responsibility. Unfortunately, General Ratko Mladic, the commander of all Serb forces in the region during the massacre, remains at large. See M. Simons, ‘Tribunal in Hague Finds Bosnia Serb Guilty of Genocide’, New York Times (3 August 2001), p. 1. 17 Rhodes, p. xv. 18 Rhodes, p. 158. 19 The Fall of Srebrenica, Paragraph 264. 20 Rhodes, pp. 23–28. 21 Rhodes, p. 364. 22 Rhodes, p. 365. 23 See A. F. Lang, Jr, Agency and Ethics: The Politics of Military Intervention (New York: Suny Press, 2001), pp. 155–86, for an analysis of the UN’s role in the intervention in Somalia that explores how it differed from and competed with that of the United States in the course of the intervention.

Part V Conclusions

11 On ‘Good Global Governance’, Institutional Design, and the Practices of Moral Agency Nicholas Rengger*

Usually, we inherit our institutions. Most of the processes by which we attend to our social and political arrangements (and indeed, many others) are the results of many hands over many years and so it would be excessive to call them ‘designed’. Constructed they certainly may be, but consciously ‘designed’ only rarely. This is as true of the formal institutions that are the focus of this volume (NATO, the UN, etc.) as it is of informal ones (the balance of power, war), though it is perhaps more clearly observable in the latter case than in the former. However, periods of radical change are often held to represent a departure from this pattern. Many writers have emphasized, for example, that internally, within states, periods of great social turmoil, even revolution, are precisely those periods that display the greatest amount of institutional innovation.1 And the growing body of work that has been undertaken recently on the construction of new international orders after major wars suggests that a similar view is becoming much more common within international relations than might once have been the case.2 Such a view does not require, but is perhaps temperamentally linked to, a belief in at least the possibility of progressive innovation in world politics both in the sense of such innovation being cumulative over time but also, usually, in the sense of a normative advance as well. It is certainly true, I think, that over the course of the last fifteen years or so – at least until the advent of President George W. Bush and then September 11 – there has been a notable reinvigoration in what we might call the ‘institutionalist agenda’ in world politics, a result in part of a perception that the times in which we live are, clearly, radical, and that the institutional ‘shape’ of world politics is ill-suited to meet the challenges our times impose. Thus, we must reshape it.

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The list of such attempted institutional reshaping is very large. It includes, for example, the reform of the major international institution of the post second world war era, the United Nations, and in a variety of ways.3 There was much discussion too, especially after the Asian financial crisis of 1998, of the reform or even the complete redesign of the Bretton Woods institutions, specifically the International Monetary Fund (IMF) and the World Bank, though three years later little has come of this. Still, the creation (or emergence) of other institutions, such as the World Trade Organization, or an International Criminal Court, keeps the pot of global institutional design bubbling nicely. In this context, we would be remiss if we did not include the obvious design of new institutions in political systems undergoing transition from authoritarian to liberal-democratic forms.4 And these are simply the governmental institutions most frequently discussed. Perhaps the most commented upon feature of contemporary international relations is the growing power in world politics of private actors (transnational corporations, social movements and other so-called ‘transnational actors’) which add a further dimension to this process of international institutionalization and of institutional design, that is outside the formal sphere of governmental control and, it is often argued, makes the current wave of institutionalization and legalization in world politics qualitatively distinct from earlier examples.5 An important aspect of this growing debate is the consideration of notions of moral agency. Questions of collective responsibility are not new in moral and political theory, of course, but recent political events, and some responses to them, have combined to give such questions increasing prominence. The role of bodies like the Truth and Reconciliation Commission in South Africa have raised the question of both individual and collective moral guilt and response very directly,6 as has the growth of discussions of collective guilt or shame in various international and domestic contexts, for example, with respect to slavery, colonialism, and money laundering by outside actors for the Nazi government during the second world war.7 Combined with the increasing significance of normative discussion in both international relations scholarship and practice, this leads naturally to the view that, at least in some form and in some contexts, it makes sense to talk of collective or institutional moral agency as well. In this chapter, I want to offer an interpretation of the growing body of thought and practice on institutional design and discuss how this relates both to notions of ‘good global governance’ and to the idea of institutional moral agency introduced in this volume. I shall argue that

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the possibility of institutional design is central to the project of establishing progressive ‘good governance’ at the global level, advocated in different ways and to different degrees by many in contemporary political theory, philosophy, and international relations scholarship – and by many in the policy community as well. I shall then examine in more detail a central assumption that must be made by advocates of this position – to wit, that we can design institutions for good governance and that such institutions can thus be expected to display the requisite moral agency in action. I shall then argue that there are two distinct ways in which we might make such a claim, that the weaker thesis has more to commend it than the stronger, but that it is also much less popular for reasons that are deeply embedded in contemporary thought and practice. I shall therefore conclude both that there is an increasing wager on the capacity of institutions to possess moral agency in the contemporary world, but that such a wager is likely to be lost precisely at the moment of its perceived triumph. As a preface to this, however, let me say something about how I shall understand the notion that one can meaningfully talk about institutional moral agency. Let me simply state at the outset that I shall accept, as a hypothesis, that in the relevant sense, to talk of ‘institutional moral agency’ means talk about collective moral agency, and that a workable notion of collective moral agency must have three basic components: for collectivities (meaningfully) to be considered moral agents they must first be agents, they must possess a capacity for moral deliberation, and must also be able to act on the basis of this deliberation.8 Thus, as Toni Erskine suggests, the institutions with which I am primarily concerned here – both governmental and non-governmental public actors – are, certainly, good candidates for the ascription of institutional moral agency. They are agents (in the main part at least) and they have the capacity for moral reasoning and action.

‘Good global governance’ It is now a commonplace to talk of the growing structures of ‘global governance’: the patterns of major state summits – G-7 (or 8) – annual meetings of the IMF/World Bank, public/private mergers such as the annual World Economic Forum (WEF) meetings in Davos, the central role, in regulation and monitoring, of institutions like the Bank for International Settlements in Basel, and the obvious and very high profile role of institutions like the United Nations Security Council. Such processes have attracted an increasing amount of discussion (both

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positive and negative) through the 1990s and have generated – along with the even larger literature on globalization – a real sense amongst many, scholars and ‘practitioners’ alike, that something rather profound is happening which is changing the political, economic, and cultural assumptions that we inhabit.9 A less noted aspect of these processes, however, is the normative component they clearly have. The ‘global governance’ debate most certainly does not exhibit Pope’s famously careless approach to norms where, ‘For forms of government let fools contest, / What’ere is best administered is best’.10 Whether the advocates of global governance theorize from the standpoint of contemporary neo-liberalism – which gave birth to the so-called ‘Washington consensus’ and its mantras about deregulation and privatization – from the perspective of more ‘third way’ and multi-lateral forms – the ‘post Washington consensus’, perhaps – or from even more obviously radical forms which emphasize ‘cosmopolitan democracy’ and the ‘transformation of political community’, the normative component of ‘global governance’ is central.11 In this respect, one of the key aspects of the institutions concerned with ‘global governance’ is the fact that they have been developed for some specific purpose (however much that purpose itself might be a matter of debate) and that the stated purpose is intended to fit into an overall pattern of ‘good governance’ globally. Thus, the World Bank has a general function in the promotion and analysis of economic development and if it does not encourage and promote this (in some form) it is legitimately open to criticism,12 given that this is its role in the global governance system and on the further assumption that economic development is a morally good (or at least morally neutral) objective. Similarly the World Trade Organization is designed to develop an increasingly open world trade regime, and it would be regarded as a failure if free trade were continually trumped by protectionist sentiment and policy. The sense that this set of processes and institutions has, as a whole (however loose and permissive the whole might be), an aim, and that the aim is to promote and enhance good governance globally, itself suggests a number of things. First, as some scholars have rightly noted, it bears a distinct whiff of the old ‘standard of civilization’ by which nonEuropean states were admitted to the club of civilized nations according to the closeness to which they patterned their behaviour after European behaviour.13 The assumption that underlay this view, of course, was that European behaviour was ‘civilized’, and thus morally superior to, nonEuropean behaviour. Of course, the view today would not be expressed in such crude terms (occasional outbursts from the likes of Silvio

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Berlusconi not withstanding). Nonetheless, the assumption that global governance should also be good governance leads directly to a number of not dissimilar claims. The increasing stridency of the global human rights movement, especially after perceived successes such as Pinochet’s arrest in the United Kingdom and the creation of the Permanent International Criminal Court (PICC), is one such, often cited14 – as is the view, developed by prominent international lawyers such as James Crawford and Thomas Franck, that there is an emerging right of ‘democratic governance’ in international relations.15 A second implication is that we are increasingly coming to expect certain institutions to play certain normative roles in the context of assuming that certain processes are required for ‘good governance’. The aforementioned ‘right’ of democratic governance is one such process, for example, and the increasing amount of time and energy being devoted, at least in certain contexts, to ‘election monitoring’ in international relations is powerful evidence of its increasing normative salience.16 On this argument, democratic institutions are required to have moral agency and are held accountable if they do not exercise it. Thus, we need to ensure that ‘democratic institutions are actually working as they should’. Of course, in specific contexts there may well be other motivations at work: it may be in groups’ interests that elections are (and are seen to be) free and fair as well as meeting some alleged normative standard. But this does not vitiate the importance of the fact that there is a normative standard and that institutions are supposed to instantiate it.

Institutional moral agency and institutional design Let me suggest that in the framing of the quest for ‘good global governance’ we can distil two distinct notions of the role and scope of institutional moral agency. Let me call them the strong and the weak versions of institutional moral agency and offer an account of the character of each in turn. The strong version claims that institutions need to be designed with specific moral purposes and capacities in mind. Thus, the PICC is designed to treat a specific set of crimes (its remit) in a specific sort of way (its method). It has the capacity for moral deliberation in the sense of being enabled to decide how best to fulfil its remit and, perhaps – through regular periods of reflection and renewal – to change and even to expand it. The chief problem with this version, however, is that it has become folded into a particular way of understanding the character

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of the setting and meeting of any given institutional remit. We might call this, the tyranny of rules or perhaps of principles.17 The character of the ‘good global governance’ we discussed above, for example, is usually understood (whether by neo-liberals or their opponents) as dependent on the creation of a set of rules that denote common purposes. Institutions designed to enhance such purposes are therefore supposed to ‘abide by the rules’ and are crafted with that end in view. By definition, therefore, they privilege (and must privilege) ‘theory’ over practice because practice must – in the context of ‘design’ – be shaped through the sorts of middle range ‘theories’ discussed by Robert Goodin.18 This is the only way one can reach the required levels of generality and universality and also the only way one can generate the sort of measurable outcomes that a utilitarian and consequentialist focus requires. This view is, of course, a common one in much contemporary inquiry. It is the dominant one in much of the social sciences (certainly in areas like economics and much of the policy sciences) and is influential in much analytical moral and political theory. In a somewhat haphazard and rather bowdlerized form it has also become the rule in much contemporary policy discussion, especially where the importance of normative questions is recognized. As Richard Higgott has remarked, for example, ‘the post Washington consensus (PWC) is not merely driven by the desire to contain the incipient revolt against globalization. There is also … a genuine recognition of the importance of tackling ethical questions of justice, fairness and inequality’.19 As he also notes, however, the governance agenda that is emerging out of the debates surrounding the PWC is one that, for growing numbers of people, must address the ‘justice agenda’ in world politics in a more overtly political way than it has so far done if it is to hope to address the question of ‘winners and losers’ that is at the heart of the rolling debate about globalization. Such a task would require, he suggests, the growing approximation of domestic and international decision-making processes to one another and the recognition of the political character of such contextualization. Yet this is not what is happening at present. On the contrary, the framing of the question of ‘good global governance’ is still stuck at the technical, efficiency led, rules and processes oriented level, albeit in a different way than before. The reasons behind the dominance of this way of framing questions of action and of evaluation are, of course, far too complex to be discussed in any detail in the present context. However, it is worth emphasizing both the specificity of the contemporary manifestation of these assumptions in the intellectual and socio-political history of the

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western world over the last two hundred years20 and the much less discussed point that this specificity has its analogues in other cultural contexts and framings.21 In other words, this is not to claim that ‘the West’ alone makes such assumptions or develops such practices. Rather it simply says that the way that ‘Western’ elites have framed these questions and the extent to which such framings have become the building blocks of contemporary international institutionalization are the chief context in which one must understand the question of institutional design in world politics. Other contexts would elicit other framings, some ‘Western’, some not. As a number of writers have suggested, however, this way of addressing the question is problematic at best and, in some circumstances, disastrous,22 not because there are no contexts in which there is a meaningful ascription of moral agency to institutions but rather because such contexts necessarily arise and are seen to do so only in specific concrete practices which cannot be ‘theorized’ (at any level) in advance. Thus, we can, I think, quite happily discuss whether or not there is a meaningful ascription of moral agency in specific cases (and a number of the chapters in this book do just this very ably indeed) where, in other words, the ascription emerges out of a consideration of the practice or practices involved. However, this is very different from designing an institution with an allegedly specific set of moral purposes and then evaluating it by means of a kind of moral algorithm. Moral agency in institutions, in other words, is possible and should indeed form part of our language of moral discussion and evaluation but it cannot expressly be designed into any specific institution, or institutional arrangement, in advance of the practice of that institution. It might be said, however, that even if this is not possible there is another kind of ‘design’ feature that we should pay attention to in contemporary international relations. This consists in the weaker claim that institutions should be designed to have the capacity for moral agency, rather than any specific set of moral purposes or abridgement of any particular set of rules. Here the point would be to stress the deliberative aspects of successful moral agency and thus to suggest that institutions must be shaped in such a way that does justice to this, if they are to be effective moral agents. The point about this way of framing the issue is that such a process would require that the ‘agents’ involved were sensitive to the context in which they operate rather than attempt to work by universal norms. In this respect they would have to be open to the practice that James Scott has called metis23 in ways that most contemporary institutional structures are not. In this context, the key

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point is not whether institutions can be agents, even moral agents, but what kind of moral agents they are able to be: a moral agent capable of responding to the circumstances in which it finds itself in reasonable and appropriate ways, or one that is required to act in certain specific ways, decided in advance of processes of deliberation and in ignorance of the context. The problem, of course, is that for the weaker version to be adopted, the whole intellectual construction of contemporary global governance would have to shift. The current ambition to create ‘good governance’ is essentially top–down; the weaker way of framing it is essentially bottom–up (constructing, even designing, institutions capable of knowing when to throw the ‘rule book’ away). The essence of contemporary ‘global public policy’, as Richard Higgott suggests,24 is universalistic, rule oriented, and thoroughly obsessed with techne of various kinds, principally economic and scientific;25 the weaker version discussed here, is local, contextual, and suspicious of such techne. The point, in other words, is that the type of institutional moral agency most likely to be successful in enabling genuine ‘good governance’ – global or otherwise – is precisely that which is most likely to be disabled by the current assumptions underlying – and the structures constructing – ‘good global governance’.

Conclusion The ambition of much of the ‘new institutionalist agenda’ in world politics is to create progressively more efficient structures and processes that will enable ‘good global governance’. Part of this agenda is a normative one; the agenda seeks to address questions of justice, of inequality, and so on. We have made a wager that if we can design institutions of sufficient generality and universality, that are open, transparent, and with clear rules and processes, and – at least in some cases – possessing clear moral remits, then we can produce ‘good global governance’. I suggest, however, that such a wager is doomed to failure precisely at the moment it succeeds in producing such institutions and such a structure; it will be ‘a wager lost by winning’.26 For such a structure will be unable to exercise the only kind of ‘moral agency’ that is appropriate; to wit, contextualized, case sensitive moral agency. The kinds of institutions such a framing of moral agency requires are themselves different from standard bureaucratic models and will need, I suspect, a much more flexible notion of institution and institution building than that suggested by the conventional literature.27 Yet, the likelihood remains

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that continuous attempts will be made and that the failure to secure ‘good global governance’ will be placed at any door but the one where it truly belongs. Meanwhile, the more quotidian and much less ambitious task of understanding and assessing the complex and often ramshackle character of contemporary world politics, with all its transitory character and messiness, remains. The risk, of course, is that our failure in the former category will remain unperceived and that our attempts to confront the latter one will dwindle in comparison with ever more desperate attempts to design institutions capable of ‘good global governance’. It would be foolish to suppose that there are many grounds for optimism, but then again there are, equally, few grounds for despair. World Politics, after all, remains the domain of the quotidian, where, perhaps more than anywhere else in human public life, what Kipling famously called ‘the Gods of the Copybook Headings’ hold sway. If that makes it at times easy to despair of any attempt to change or alter the course of events, it should also mean that attempts that cut with the grain of human capacities rather than against them stand a better chance of effective action than others. Our character as individual moral beings depends on precisely the kind of context dependent, casuistical (even, dare I say it, traditional) framing that would be most at home in the weaker version of institutional moral agency described above. If that is so, then it is surely to be expected, that from time to time at least, we are able to shape and craft institutions able to display appropriate moral agency in appropriate contexts. If we wager on that, and avoid the grander schemes currently obsessing our elites, we will probably, over time, at least break even.

Notes *

I am grateful to all the participants in the BISA/ISA Joint Special Workshop, ‘Can Institutions have Morals?’, held at the University of Cambridge, 17– 19 November 2000, for the arresting and fascinating discussions we had. I am especially grateful to Toni Erskine, Chris Brown, Mervyn Frost, Onora O’Neill, and my colleagues at St Andrews, especially Mark Imber, Oliver Richmond, and William Walker for discussions about the character and fate of international institutions as well as comments on earlier drafts of this chapter.

1 Some, for example, Sheldon Wolin, have even gone so far as to suggest that certain kinds of political assumptions are really present only at such moments. See his essay ‘Fugitive democracy’ in S. Benhabib (ed.), Democracy and Difference (Princeton: Princeton University Press, 1996). 2 See especially, A. Williams, Failed Imagination: New World Orders of the Twentieth Century (Manchester: Manchester University Press, 1998); G. J. Ikenberry,

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After Victory: Institutions, Strategic Restraint, and the Rebuilding of Order After Major Wars (Princeton: Princeton University Press, 2000); I. Clark, The Post Cold War Order (Oxford: Oxford University Press, 2001). See, for good discussions of this, M. Imber, Environment, Security and UN Reform (New York: St Martins Press, 1994); M. Imber, ‘Too Many Cooks? UN Reform after the UNCED/ “Earth Summit”, ’ International Affairs, LXIX (1993) 55–70. For some good discussions of the international context of such transitions see G. Pridham, E. Herring, and G. Sanford (eds), Building Democracy? The International Context of Democratic Transition (Leicester: Leicester University Press, 1997). The literature here is enormous, of course. Particularly good treatments would include D. Held et al., Global Transformations: Politics, Economics, Culture (Oxford: Polity Press, 1999), and A. Linklater, The Transformation of Political Community (Oxford: Polity Press, 1998). For an excellent discussion of the moral and political aspects of this process see R. I. Rotberg and D. Thompson (eds), Truth V Justice: The Morality of Truth Commissions (Princeton: Princeton University Press, 2000). The most thorough discussion of this set of issues can be found in E. Barkan, The Guilt of Nations (New York: Norton, 2000). Toni Erskine, Chapter 1, p. 21. Also see Chapter 1 for Erskine’s relevant detailed discussion of these components. On these phenomena see Held et al., Global Transformations, and also R. Devetak and R. Higgott, ‘Justice Unbound? Globalization, States and the transformation of the social bond’, International Affairs, LXXV (1999) 483–98. In his Essay on Man [1734] (Menston: Scolar Press, 1969). See, for example, D. Held, Democracy and the Global Order (Oxford: Polity Press, 1995) and Linklater. Even those critical of the conventional development literature would, I think, agree with this formulation. See A. Sen, Development as Freedom (Oxford: Oxford University Press, 1999). See G. W. Gong, The Standard of Civilization in International Society (Oxford: Clarendon Press, 1989), for the best extant discussion of this phenomenon. For an argument that aspects of the current global governance regime – in particular the human rights regime – are an echo of this old view see J. Donnelly, ‘Human Rights: Old Skepticisms, New Standards’, International Affairs, LXXIV (1998) 1–24. See, for example, the claim in Geoffrey Robertson’s thoughtful and deeply felt book, Crimes against Humanity (London: Weidenfeld and Nicholson, 1999) that in the twenty-first century the human rights regime will ‘go on the offensive’. The most extensive elaboration of this case has been Franck’s. See his Hague curatorium lectures, published as Fairness in International Laws and Institutions (Oxford: Clarendon Press, 1995). A selection of the best websites on elections which well display the increasing emphasis on election monitoring around the world can be found at http://www.psa.ac.uk/www/election.htm.

Institutional Design 217 17 This phrase is borrowed from Stephen Toulmin. See especially his arguments in Cosmopolis: The Hidden Agenda of Modernity (Chicago: University of Chicago Press, 1992) and Return to Reason (Harvard: Harvard University Press, 2001). 18 This refers to the discussion in Robert Goodin’s excellent edited collection, Theories of Institutional Design (Cambridge: Cambridge University Press, 1996). Goodin refers to middle-range theories as the most commonly used specific sets of theories to discuss institutional design. 19 R. Higgott, ‘Contested Globalization: the Changing Context and Normative Challenges’, The Review of International Studies, XXVI (2000) 131–53 (pp. 138–39). 20 See especially, Toulmin, Cosmopolis, for a discussion of this, though M. Oakeshott, On Human Conduct (Oxford: Clarendon Press, 1975) offers an equally powerful discussion of the same theme in the essay ‘On the character of the Modern European State’. 21 An example of this is suggested by the current context at the time of writing. One of the central assumptions governing ‘Western’ frameworks would be claims to ‘universality’. This should be seen, however, as effectively a claim that there is a principal truth – universal for all who fall under its scope – that trumps all others. Osama Bin Laden, in so far as I have been able to distil a coherent view from the rather episodic ramblings that pass for justification of his practice, seems to think in much the same way. There is Truth, universal for all those who fall under its scope. But, of course, the relevant scope for Bin laden is limited to Islam whereas for the ‘West’ it is meant to be much more generally universal. The point is that for neither is there much room for tolerance of divergent positions, irony, non-practical reflection, or traditions alien to the ‘universal’ one. 22 For three particular favourites, M. Oakeshott, Rationalism in Politics (London: Methuen, 1962); Toulmin, Cosmopolis and Return To Reason, and J. Scott, Seeing Like A State (New Haven: Yale University Press, 1999). 23 See Scott, chapter 9. The term, taken from the Greek is usually translated as ‘cunning’, but, as Scott suggests, phrases like ‘appropriate reason’, or even ‘local (or practical) knowledge’ probably suit the most common usages better. 24 See Higgott, ‘Contested Globalization’, p. 144. 25 Or, perhaps better, a certain dominant kind of economic and scientific technique. 26 To borrow the title of a lovely story from John Brunner’s book Traveler in Black (London: Methuen, 1987). 27 Again this is a point much discussed by Scott in Seeing Like a State. It is also a concern Toulmin elaborates in the closing chapters of Cosmopolis.

12 Global Justice: Aims, Arrangements, and Responsibilities Christian Barry*

A fairly broad consensus has emerged about the characteristics of a minimally decent world. Indeed, during the past century, moral norms protecting the freedoms of the weak and vulnerable have become increasingly potent, condemning practices such as genocide, colonialism, autocracy, slavery, sexual violence against women, and economic structures that avoidably lead to widespread destitution. It is also commonly held that our current world fails to meet these criteria. Even after a period of unprecedented opulence, more than 800 million people lack adequate nutrition and access to basic health services, and there are some 110 million child labourers under the age of 12, more than half of whom work in hazardous conditions. Most observers assert that someone is morally required to provide the resources and to bring about changes in policies or social arrangements necessary to achieve improvements in these conditions. Moreover, endorsements of the ‘rights’ of all people to be protected from these deprivations has become quite common. There are sharp differences, however, about the particular agents or institutions that are under an obligation to do so, about who is (to quote David Miller) ‘picked out, either individually or along with others, as having a responsibility towards the deprived or suffering party that is not shared equally among all agents’.1 Indeed, failure to bring about the changes in conduct, policy, and the structure of social arrangements that could contribute to a more decent world often appears to be due to the fact that few feel particularly responsible for working towards their enactment. International political theory has unfortunately offered little guidance for evaluating these disagreements. When questions of responsibility have been raised, they have tended to focus either on individuals’ moral responsibilities to contribute to the well-being of distant others, or 218

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generic and unspecific responsibilities to promote just social arrangements. Framing questions of responsibilities at a general level is of little use for determining what they might actually mean in our world, and insofar as our reflections fail to connect with live political questions concerning the responsibilities of existing institutions such the World Bank and the IMF, or the justice of arrangements such as international fiscal, labour, and property law, they will remain rather thin and obscure, and ourselves overly vexed. But, as Toni Erskine points out in her introduction, it is impossible even to begin to evaluate disagreements regarding responsibilities to remedy serious deprivations without investigating who can bear them. Many of the essays in this volume have laid the groundwork for allocating responsibilities by investigating the capabilities of ‘institutions’ – collective agents and organizations such as firms, churches, nongovernmental organizations, corporations, and states – that tie their members together through normative expectations and define special rights and obligations, powers, and responsibilities.2 Several have sought to determine whether institutions possess moral agency, and have explored the plausibility of different criteria for ascribing responsibilities to them on that basis. Others have addressed the status of our ascriptions of capability, agency, and moral responsibility to institutions, questioning whether ‘possession’ of these characteristics depends on satisfying objective requirements, such as capacity for deliberation and reasoned decision, or whether they are (to paraphrase P. F. Strawson) merely expressions or our ‘form of life’, and neither call for nor permit any rational justification.3 Still others have looked into the relationship between our judgements of institutions and the individuals that comprise and/or participate in them. Two significant lessons emerge from this volume for thinking about responsibilities that would alleviate serious global problems. First, an adequate conception of these responsibilities will require a richer account of the capabilities of institutions. Indeed, unrealistic understandings of the capabilities of different agents and institutions, such as their ability to understand and effectively act in response to moral imperatives, has often led to their being assigned responsibilities in implausible ways.4 Second, focusing exclusively on what might be called interactional responsibilities – which involve the responsibilities that individuals hold directly to others – can lead to neglect of the important ways that agents affect one another through their membership in institutions. This neglect is particularly problematic because participation in institutions can erode the sense of connection that individuals have

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with the effects of their actions, and because many of the most consequential ways that we affect others is through them.5 Indeed, overlooking the capacities and responsibilities of institutions can also easily lead to a false sense of futility with respect to global problems, since peoples’ capacities to address them individually are usually quite limited.6 Conceptions of individual responsibilities must therefore be supplemented by an account of institutional responsibilities that specifies what institutions ‘owe’ to others, based on an adequate understanding of the capabilities of these institutions. Moreover, recognition of institutional responsibilities should, in turn, alert individuals to pay closer attention to the conduct of institutions in which they participate and motivate them to ensure that these responsibilities are fulfilled. This concluding chapter introduces three additional and interconnected issues, each of which is crucial for developing an account of how responsibilities to remedy global problems should be allocated in the real world. The first concerns the character of responsibilities to take action on global problems: whether what is needed is a change in the behaviour of individual or collective agents or, instead, a change in the framework of rules and institutions within which these agents act. The second discusses the principles that might be invoked, and with what weight, in allocating these responsibilities among different individuals and institutions. The third deals with the difficulties involved in applying principles for allocating responsibilities in the real world.

The character of responsibilities Moral responsibilities and responsibilities of justice To the distinction between interactional and institutional responsibilities must be added a further distinction between moral responsibilities and responsibilities of justice. Moral responsibilities – whether to refrain from harming, to care for those with whom one has special relationships, or to promote general well-being – are held directly to other agents. Responsibilities of justice, such as those to institute and uphold just institutions, to ensure that they are complied with, or to bring remedy to hardships when they are lacking, are held only indirectly to other agents insofar as they are affected by social rules. Appeals to moral responsibilities do not attempt to address the structure of social arrangements but instead call on agents to change their behaviour within them. In the case of access to HIV/AIDS drugs, for example, pharmaceutical companies are often called upon to change their practices in order to improve the distribution of benefits and

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burdens that the prevailing market structure engenders. Such appeals do not question the basis of these companies’ entitlements, but rather the way they conduct themselves towards others within this framework of entitlements. Such appeals tend to treat corporations as comparable to individual moral agents, attributing to them responsibilities to promote a better distribution of population health and prevent deaths where possible. They call, in effect, for the redistribution of assets on the basis of these principles.7 Appeals to responsibilities of justice, on the other hand, call for agents to remedy deprivations by restructuring social arrangements. In the case of access to HIV/AIDS drugs, these include such measures as changing the duration and scope of patent rights or other market rules. Agents are addressed insofar as they have played, currently play, or could potentially play a significant role in the shaping of social arrangements that have contributed, are contributing, or will contribute to the inaccessibility of essential medicines in the developing world. When fair arrangements exist, agents may also bear responsibilities of justice to ensure that they are sufficiently respected and enforced. In this context, these appeals would ask for a revision of the entitlement-producing processes that have strongly influenced the accessibility of medicines in the first place.

The centrality of responsibilities of justice As noted above, discussions of responsibilities for remedying global problems tend to focus on interactional moral responsibilities. Limiting attention to these responsibilities will be less than adequate in complex social contexts since, as Samuel Scheffler has recently put it, they implicitly ‘assume a conception of human social relations as consisting primarily in small-scale interactions, with clearly demarcated lines of causation, among independent agents’.8 Clearly demarcated lines of causation are extremely rare in our world, and other essays in this volume have emphasized the complex relations of causation between agents that are engendered by their participation in institutions. Merely supplementing accounts of interactional moral responsibilities with institutional moral responsibilities, however, is also inadequate. This is because overemphasizing moral responsibilities, whether of individuals or institutions, will tend to lead agents to neglect the ways that they indirectly affect others through shared rules. When a social order is characterized by weak or unfair social rules, deprivations can exist without being easily traceable to the actions of particular individuals or groups. But even where deprivations can be traced to the actions of

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individuals and groups, such as widespread corruption among political leaders, abusive police practices, and the organized violence of private associations, the prevalence of these practices may be strongly influenced by the prevailing background of social rules. Corruption and undemocratic governance at the national level in developing countries, for instance, seem often to be related to flaws in global arrangements, such as the structure of international markets, or to the developmental paths that are encouraged by certain international institutions. Corrupt governments often remain in power because of financial and military assistance from abroad, which enables them to ignore and suppress dissent within their borders.9 Low salaries and reward incentives offered to them by local elites or foreign entrepreneurs often contribute to corruption and rent seeking amongst states’ officials. Levels of private violence are often aggravated by lax domestic and international restrictions on the purchase of arms, or by economic policies that lead to increasing inequality.10 Indeed, addressing even the simplest questions of individual character and conduct now seem unmanageable without first attending to the fairness of the social rules that deeply influence the life prospects of all participants within a social system. Failure to attend to the effects of shared rules can seriously diminish agents’ sense of their responsibilities with respect to very serious deprivations. Indeed, as Rudiger Bittner has recently pointed out, when situations are not clearly brought about by a single agent (whether individual or collective), or by a small number of specific agents, people tend not to assign little bits of responsibility to many persons but rather stop ascribing responsibility to anyone at all.11 One reason why some issues, such as lack of access to medicines, receive great attention while others (such as severe income poverty) do not is that some deprivations seem (at least) imputable to an easily identifiable class of agents (such as Western pharmaceutical companies) while others do not. But recognizing this psychological tendency does not thereby justify neglect of responsibilities in cases where deprivations are caused by a complex range of factors. Even small contributions to substantial harms can entail weighty responsibilities to remedy or compensate them.12 Appeals to responsibilities of justice can potentially ask for the reform of social arrangements at many different levels. Rules currently governing labour rights, for example, are couched within the assumptions of the broader framework of global market capitalism – which itself depends upon a broader framework of personal property rights and state sovereignty. An honest reckoning of the morality of individual or institutional purchasing and consumption behaviour should therefore most

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likely begin with the examination of the fairness of rules governing labour practices and international trade.

Specifying responsibilities for achieving global justice The concept of ‘justice’ has been employed for various tasks, including the moral assessment of individual character and conduct, and of distributions of goods and ills. More recently, ‘justice’ has most often been invoked in the context of assessing basic social arrangements – the relatively stable norms and rules that govern the interactions of participants within social systems. In this context, ‘The role of the principles of justice (as part of a political conception of justice) is to specify the fair terms of social cooperation’.13 In domestic settings, these arrangements include the tax system, bequeathable rights to private property, and the structure of political decision-making. The demands of justice are frequently presented as strictly required in contrast with the more flexible – and sometimes conflicting – demands of mercy, charity, humanity, beneficence, and equity.14 ‘Global’ justice concerns the fairness of global rules and arrangements.15 These include markets in capital and labour, international fiscal, labour, and property law, international trade and monetary arrangements, and constitutive features of the modern state such as its sovereign rights to tax, to bind citizens through agreements, to control the use of natural resources within its territorial domain and represent its interests in international bargaining and rule setting. Different concepts have been used to describe and identify these arrangements. Philosophers and political theorists have referred to these arrangements as constituting, variously, the ‘global basic structure’, the ‘international regime’, the ‘global institutional scheme’, or ‘the global social system’, and Article § 28 of The Universal Declaration of Human Rights refers to a right to a ‘social and international order’. Developing an account of responsibilities of justice involves three elements. It requires a conception of the appropriate aims that a social order should be designed to realize. It also demands an understanding of the specific social arrangements that can realize these aims. Finally, it depends upon specifying principles for allocating responsibilities with respect to these arrangements, including responsibilities to uphold, and comply with these arrangements when they are in place, responsibilities to work towards bringing about fair arrangements where they are lacking, and responsibilities to remedy the hardships brought about by unfair existing arrangements. Rational argument about responsibilities of justice, then, can be of three kinds. It can concern disagreement

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about aims – the goals, values, and ideals that agents should pursue or that a social order ought to be designed to achieve. It can concern the particular social arrangements that can realize these aims, or it can concern the allocation of responsibilities to promote, secure, or defend them. This section gives an indication of the range of aims and approaches to social arrangements that have dominated recent debates.16

Aims ‘The idea of social justice’, as Charles Beitz has recently remarked, has ‘two faces, one looks toward the distribution of the benefits of social life; the other, toward the allocation of its burdens’.17 The aims of a conception of justice focus on its first face, articulating an understanding of the benefits, and their distribution, that is relevant for the assessment of social arrangements. The aims of a conception of global justice can in turn be differentiated into three components, which I shall call the subjects, goods, and standards of justice. The subjects of global justice are those entities that are deemed relevant to our assessment of social arrangements – at whom we look in assessing goods and ills (e.g., persons, groups, compatriots, communities, states, and nations). Statist conceptions of global justice take states as their subjects, focusing on their absolute and relative conditions, such as whether there are steep inequalities in wealth or political influence between them, or whether they lack the resources and capacities to secure just domestic institutions. Cosmopolitan views take individual persons as their subjects, and focus directly on the distribution of goods and ills (e.g., wealth, education, health, poverty, illiteracy, and morbidity) amongst them. An account of goods within a conception of global justice specifies the information about subjects that is relevant for the evaluation of global arrangements, ‘the variables’, as Sen puts it, ‘that are directly involved in assessing the justice of alternative systems or arrangements’.18 Resources, freedoms, opportunities, and happiness have appeared in various combinations as the goods that are relevant for assessing social arrangements.19 Different conceptions of global justice might, for instance, evaluate countries and persons as fairing better or worse according, variously, to their economic performance, literacy rates, life-expectancies, enjoyment of civil and political liberties, freedom from coercion, or to a weighted combination of some or all of these kinds of goods. It is important, however, not to confuse ‘goods’ in this sense with commodities. Recent writings on global justice have tended to

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emphasize the good of treating individuals as citizens with rights to shape the social arrangements that affect them and not only as clients with an interest in receiving high quality services.20 And some have insisted that the performance of global arrangements should be evaluated with a view to the legitimacy of the procedures by which they are run and not only with regard to their efficacy in generating desirable consequences. Legitimacy may require, for instance, that standing social rules are publicly known and subject to revision and reinterpretation through collective decision-making procedures.21 The standards of a conception of global justice concerns its distributive requirements – whether, for instance, one ought to use sumranking, maximin, or some indicator of inequality as an aggregation function for combining the relevant goods enjoyed by the subjects of justice for the purpose of evaluating social arrangements. It also concerns its minimal requirements – whether, for example, it requires that all subjects enjoy security and access to basic liberties and necessities.22

Arrangements What kinds of changes then, would enable our global order to secure at least minimum standards of well-being for all persons in a fair and legitimate way? Allocating responsibilities requires a clear account of the effectiveness of different arrangements for securing these standards. Many practical disagreements about the justice of our global order have therefore been empirical, with advocates of opposing positions differing on the best means to achieve shared aims. Our world is organized into sovereign territorial states, and one can helpfully distinguish different approaches to global reform in terms of their attitude towards the central characteristics of this mode of political organization.23 Three central characteristics of the states system can be distinguished: authority, responsibility, and rule setting. States are taken to have more or less complete authority over both territories and the persons residing in them. They are held to bear primary responsibility for its residents – including responsibilities to secure some universal minimum standards of well-being for these persons.24 States are also deemed to be the legitimate actors in rule setting, and in shaping supranational social arrangements and the decision-making procedures within them through processes of intergovernmental bargaining and negotiation. Broadly ‘statist’ views tend to interpret failures to achieve the aims of justice as a function mostly of failed, ineffective, or unjust states. Subsequently, they tend to argue that injustice can best be remedied

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through the reform of existing states, or by creating and supporting state institutions where they are lacking. Supranational institutions and non-state actors are correspondingly conceived as playing only a secondary and supporting role to states, enabling them to fulfil their responsibilities to their residents. Statist views are motivated in a variety of ways, ranging from simple considerations of political feasibility and practicality, to more robust claims about the unique capabilities of states to deliver the aims of justice – such as securing the goods of citizenship and distributive fairness.25 Statist commitments are also implicit in the thinking of most development institutions, particularly in initiatives such as the ‘governance’ agenda of the World Bank. Many recent discussions of governance have stressed the importance of how state institutions perform their responsibilities, particularly in relation to the market and formal political decision-making procedures. Several kinds of failures of state institutions have been emphasized, including the emergence of rent-seeking practices, the insecurity of property rights, the corrupt management of foreign aid, overly centralized decision-making procedures and failure to secure free and fair elections and the peaceful transfer of power. Although statists may vary in their estimation of the capabilities of different agents to bring about change in these practices, they agree that achieving the aims of global justice should fundamentally be conceived as the challenge of creating adequate incentives for state reform.26 Where no effective state institutions exist (as in the case of so-called ‘failed states’), or where they have limited capacities (as in the case of so-called ‘quasi states’) then international action should be geared to creating and supporting them. Where corruption is endemic, aid and other forms of support should be used strategically, perhaps through the use of conditionality, to bring about state reform. Cosmopolitans, conversely, have argued that efforts to secure justice should focus on the reform of social arrangements beyond the nation state, including those that govern their interactions with other actors (e.g., states, international organizations, and transnational enterprises) beyond their borders. To remedy rent seeking and corruption of public officials in developing countries and the deprivations that these activities engender, for instance, requires greater attention to factors in the international environment – from permissive norms concerning bribery of foreign officials, to the willingness of countries to do business with oppressive rulers that can create powerful incentives to participate in these activities.27 These international linkages, cosmopolitans argue,

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have assumed even greater importance in recent decades. For, while the importance of globalization is sometimes exaggerated by those who suggest that nation states have lost or are about to lose their power to govern, they argue that international rules and institutions affect the life prospects of people in more varied and significant ways.28 This is particularly true, some cosmopolitans argue, in developing countries, which are often extremely vulnerable to even minor changes in the structure of international rules and in the domestic institutions and foreign policies of more powerful states. While seldom advocating the abolition of the states system altogether, broadly cosmopolitan approaches to global reform stress the inadequacy of the states system in securing the aims of justice.29 These views tend to stress the increasing vulnerability of developing countries, especially to global capital flows and financial arrangements, which make them highly susceptible to pressures that often lead them to act in the interests of more powerful states and corporations, rather than those of persons that reside within their territorial domain. Diminishing authority, then, will tend to engender diminished capabilities of states to take responsibility for securing justice for their residents. Most cosmopolitans recognize, of course, that new international regulatory institutions and rules are being created, at least in part, to deal with these problems. They argue, however, that since these rules are largely set through a process of intergovernmental bargaining, they will tend to reflect the interests of the more powerful, formalizing the already existing divide between the systematically advantaged and disadvantaged. Indeed, many cosmopolitans argue, not implausibly, that even those institutions whose mandate is to focus primarily or exclusively on the interests of the global disadvantaged, such as the World Bank, tend instead to promote the aims of the advantaged.30

Principles for allocating responsibilities for achieving global justice By what principles should responsibilities to achieve the aims of global justice be allocated to different agents? Take, for example, the global patent regime enacted through the TRIPS agreement in the WTO, an agreement that many take to be unjust. Which agents bear responsibilities to reform these rules? How should they balance these responsibilities against others, such as the reform of injustices in local or domestic institutions, or against moral responsibilities to their near and dear? Several potential principles can be identified.31

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The contribution principle According to the contribution principle, agents are to be held specially responsible for serious deprivations when, and to the extent that, they have contributed to bringing those situations about. This principle finds support in what Samuel Scheffler has recently called the ‘commonsense’ view that ‘individuals are thought to be more responsible for what they do than for what they merely fail to prevent’.32 Indeed, even those who hold that responsibilities to help others in the absence of any special connection are quite limited seldom deny the existence of weighty responsibilities not to seriously harm others. While conduct and social rules can plausibly be regarded as in some sense contributing to deprivations in a variety of different ways, the most direct relationship of this kind is causal – those who cause harm are certainly viewed as contributing to it. How the contribution principle is interpreted will be quite consequential for allocating responsibilities. Some commentators on the issue of access to HIV/AIDS drugs, for example, argue that responsibility for making these medicines inaccessible does not lie with themselves or with the policies and practices of Western societies, by demonstrating that sufficient causes lie elsewhere, namely in the reckless behaviour of individuals and groups, or in the poor health infrastructures of developing societies. In this way, they are invoking the ‘contribution principle’ to assert that primary assignment of responsibility for improving access to essential medicines rests with individuals or poor societies. Others advocate broader interpretations of the contribution principle, arguing, in effect, that demonstrating that one’s actions or policies are not the sole cause of the crisis does not establish that they have not been a substantial cause. Indeed, even in legal contexts it is often the case that establishing that an agent is a significant cause of some deprivation is sufficient to hold them responsible for the whole deprivation.33 In the case of access to HIV/AIDS drugs, for example, this might entail that while pharmaceutical companies may not be directly responsible for creating all the relevant background conditions for the crisis, their insistence that patents be valid worldwide is one of its important causes. These disputes seem to depend on a substantial disagreement about how causation should be understood in social contexts, and also about other non-causal ways that conduct and social rules can plausibly be said to contribute to global problems. One can hold that for actions or social rules to cause a deprivation they must be a necessary condition of it, or merely that they be a substantial factor in or contribute to the outcome – perhaps by having created enabling conditions for them.34

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The beneficiary principle The beneficiary principle asserts that the strength of one’s ethical reason to alleviate some hardship or unfair social rules depends on the extent to which one has benefited from its injustice.35 Like the other principles discussed above, the beneficiary principle can be understood in different ways, the application of which may result in rather different agents being identified as bearing weighty responsibilities to remedy injustices. The concept of benefit could be understood in roughly three ways. According to the first, historical interpretation, the extent of benefit is to be judged by how much better off the agent is compared with their position before the unjust arrangement was put in place. On the second, unmoralized subjunctive interpretation, the magnitude of benefit is judged by comparing the agents’ current position against what it would have been now, had some particular unjust arrangement not been instituted. Pursuant to the third, moralized subjunctive interpretation, degree of benefit is determined by comparing agents’ current position against what it would now be under a fully just scheme of social arrangements.

The connectedness principle The connectedness principle asserts that responsibilities should be allocated on the basis of connectedness, whether this is based in joint activities, voluntary commitments, shared institutions, membership in solidaristic communities, or shared histories. The idea is that those who are connected in these ways have especially strong independent reasons for bringing remedy to one another’s hardships.36 According to a very expansive view of connectedness, shared humanity is sufficient to ground obligations, where possible, to remedy the hardships of others. No particular person is uniquely picked out to remedy hardships of this magnitude, because all are connected in this ethically significant way.37 A slightly less expansive view holds that the connections of greatest moral importance are formed when persons begin to be vulnerable to one another’s conduct.38 Narrower variants of the connectedness principle are more commonly appealed to, asserting weighty special responsibilities to intimates, associates, and to those with whom one stands in relations of reciprocity because of participation in joint cooperative systems.39 The understanding of connectedness that is taken to be most relevant in discussions of global problems stresses the moral significance of membership within states.40 While we may bear some responsibility towards those who live in other states – to ‘aid’ them and to ease their burdens – primary

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responsibility for remedying hardships is seen to fall on their own governments. Supranational institutions, other states, and non-state actors are correspondingly conceived as playing only a supporting role to states, enabling them to fulfil their own responsibilities to their residents. On such accounts, states remain, as Onora O’Neill has put it, the ‘primary agents of justice’.41 Special responsibilities based on connectedness are also commonly invoked by citizens in developed countries to shield them and their governments from the claims of foreigners.42 Responsibilities to remedy the injustice of one’s domestic or local arrangements, for instance, are often held to override responsibilities to address injustices in other states or in international rules and institutions.43

The capacity principle According to this principle, capacity to bring remedy to serious deprivations entails the responsibility to do so.44 The claim is that some agents have the capacity to alleviate the situation through technology and resources, and so they should. As David Miller puts it, its rationale is, ‘If we want bad situations put right, we should give responsibility to those who are best placed to do the remedying’.45 This principle is purely forward looking – allocating responsibilities to whomever can bring about change most efficiently and effectively, irrespective of their connectedness to the sufferer, or their contribution to the problem. According to this principle, responsibilities to remedy global problems should be regarded as ‘distributed general responsibilities’ that derive the whole of their moral force from general responsibilities. The allocation of these responsibilities is based purely on the advantage of specialization and division of labour among different agents and institutions.46 Estimates of the capacities of different agents to address global problems vary significantly depending upon whether they are understood individually or collectively. The application of the capacity principle must also be sensitive to the distinction between capacities of agents to bring remedy within the prevailing institutional framework (i.e., to take on moral responsibilities), and their capacities to bring remedy by altering the framework itself (i.e., to take on responsibilities of justice). As noted above, the capacities of a single agent may be more limited with respect to one of these tasks than to the other. Pharmaceutical firms behaving within the constraints of the market may plausibly argue, for example, that they cannot undertake unilateral efforts to create access to HIV/AIDS drugs, because they will not survive for very long and will be

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replaced by firms that are eager to do so. Similarly, governments may reasonably argue that they cannot endorse policies that run contrary to the interests of the pharmaceutical and other industries dependent on intellectual property because this might cause these companies to relocate overseas, taking with them much needed jobs and capital.47 But while each particular company and government may legitimately claim that unilateral efforts to create access to HIV/AIDS drugs will be selfdefeating, taken together they cannot so easily claim to be powerless to reshape intellectual property and other rules that might substantially enhance efforts to ensure access to life-saving medicines or other important resources. Plausible conceptions of responsibilities to remedy global problems will be likely to give some weight to each of the principles discussed in this chapter, and perhaps to others as well. These principles can be understood in diverse ways, granted different weights, and adopted in various combinations. One might claim, for example, that responsibilities should be allocated to agents to compensate for an injustice according to how much they have contributed to and benefited from them. And it is also often asserted that some principles for allocating responsibilities amongst persons are relevant given the existence of certain connections. We might argue, for instance, that the capacity principle is relevant for allocating responsibilities within solidaristic communities while different principles apply to justice between different communities.48

Methodological problems of application Even in cases where there is rough agreement about the principles that should be used in assigning remedial responsibilities and the character of the responsibilities assigned, there may well be disagreements about which agents and institutions they identify in the real world. Some of these disagreements are merely empirical, relating to conflicting estimations of the instrumental efficacy of changes in conduct, policy, or social arrangements for achieving the desired outcomes. But they are often due to methodological disagreements about how they should be applied, which political theorists have tended to neglect. Uncertainty One complicating factor in applying principles for allocating responsibilities is that in many cases there may be uncertainty about which agents are identified by a conception of remedial responsibility. It may

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be unclear, for instance, whether a particular state, or corporation has contributed to a deprivation, or whether two peoples are connected in an ethically significant way. In contexts of this kind, it is not obvious how these agents should understand their responsibilities. In criminal legal contexts, high evidential thresholds are set for proof of contribution to harm, and the burden of proof is placed with the prosecution. But different standards and presumptions of the burden of proof may be reasonable for different purposes. In civil law, for instance, a ‘preponderance of evidence’ that an agent has contributed to another’s hardship can be grounds for attributing liability to them. In still other contexts the mere suspicion that one may have been involved in causing or increasing the risk of a severe deprivation could give one sufficient reason to act to remedy it. How agents conceive of their responsibilities in the presence of uncertainty may significantly affect their understanding of what they owe others, and of the fairness of different policies, rules, and social arrangements that could potentially be adopted. In the case of responsibilities to help remedy global problems, both individual and institutional agents tend to assume that they have not played a role in contributing to these problems, and that they have not benefited from them, unless fairly conclusive evidence suggests otherwise. Yet, given the scale of suffering in our world, the fact that the current distribution of political and economic resources developed through an identifiably non-ideal historical process, and the density of social arrangements that link persons together, it is far from clear that establishing the burden of proof in this way can be justified. Indeed, given that people also tend to overstate the difficulties in estimating the probable effects of individual action and institutional change with respect to global problems, it is unsurprising that so many are complacent with respect to extreme and widespread deprivations, even those that are deplored as ‘unacceptable’.

Non-ideal theory Assignments of responsibilities for combating real-world problems must also take into account the fact that those who probably should act often will be unlikely to do so. If, for instance, governments are deemed to have primary responsibility for securing their peoples’ access to medicines, or for improving labour standards within their domain, but are unwilling or unable to do so, this will raise important questions such as whether (and which) others should step in to help or whether the burdens of these unmet responsibilities should be left to the deprived. In such contexts, many implicitly rely on an account of what Henry Shue

Global Justice 233

has called ‘default responsibilities’, which are held only when others fail to comply with responsibilities that apply to them.49 No single principle for allocating remedial default responsibilities seems obvious, yet how we conceive of them may have great practical significance. Time horizon On the surface, debates about policies and social rules are often focused on differences between economic theories that state various necessary and sufficient conditions for securing peoples’ access to goods. In addition to this familiar domain of disagreement, there are, however, deeper differences that are less explicitly debated. One such source of disagreement arises out of implicit differences in the time horizon being considered or differences in the specification of whose welfare is being considered. Many commentators emphasize the urgency of rectifying immediate deprivations (by, for example, noting the additional number of people who will have died from hunger, been raped, or contracted AIDS by the time the reader has finished reading his/her article). Importance is also placed on the immediate actions that could be taken – the force of which is often derived by demonstrating the capacity of a specific agent to act immediately. Considering both whether the welfare of future persons is included within the scope of concern of a principle and what weight their interests are given relative to existing persons, may make a substantial difference in the recommended policies and social arrangements.

Conclusion The essays in this volume have focused on important and much neglected questions about the responsibilities of institutions. This chapter has argued that to fruitfully engage questions concerning the responsibilities of either individuals or institutions, we must assess the justice of the social arrangements within which they operate. Investigations of this kind will involve sustained empirical investigation of the design and functioning of social rules, the exploration of practically feasible alternatives, and the discussion of the appropriate principles for evaluating them. But evaluations of social arrangements do not translate obviously or algorithmically into rules of conduct for individual persons or for institutions. Moreover, if no one feels morally compelled to struggle for the reform of unjust rules, little will be achieved. One might enhance public discussion of responsibilities for remedying global problems by emphasizing the importance of

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developing principles for allocating responsibilities in contexts where it is often unclear who has caused these problems. Fundamental to this task, however, is determining who can help to alleviate global problems. This volume’s critical examination of the viability and practical implications of treating institutions as moral agents is an important first step in carrying this out.

Notes *

I am indebted to Tony Lang, Thomas Pogge, Kate Raworth, Sanjay Reddy, and Joel Rosenthal for many fruitful discussions of these themes, and to Toni Erskine for her very helpful written comments on earlier versions of this chapter.

1 David Miller refers to these as ‘remedial responsibilities’. See his excellent ‘Distributing Responsibilities’, Journal of Political Philosophy, IX (2001) 453–71. 2 To remain consistent with the other essays in this volume, I will refer to these collective agents as ‘institutions’ throughout this chapter. 3 P. F. Strawson, ‘Freedom and Resentment’, Proceedings of the British Academy, XLVIII (1962) 1–25 (p. 23). 4 See O. O’Neill, Bounds of Justice (Cambridge: Cambridge University Press, 2000); ‘Agents of Justice’, Metaphilosophy, XXXII (2001) 180–95, and T. Erskine, ‘ “Blood on the UN’s Hands”? Assigning Duties and Apportioning Blame to an Intergovernmental Organization’, Global Society, XVIII (January 2004). 5 This can engender, as Russell Hardin has recently put it ‘a semideliberate inattention’ in place of ‘individualized attention’. R. Hardin, ‘Institutional Morality’, in R. Goodin (ed.), Theories of Institutional Design (Cambridge: Cambridge University Press, 1996), pp. 126–53 (p. 142). 6 As Henry Shue has put it, ‘Isolated and uncoordinated efforts by individuals are materially wasteful and can be psychologically oppressive to no good purpose’. H. Shue, ‘Mediating Duties’, Ethics, XCVIII (1988) 687–704 (p. 697). 7 See, for example, P. G. Harris and P. Siplon, ‘International Obligation and HIV/AIDS’, Ethics & International Affairs, XV 2 (2001) 29–52, D. Resnick, ‘Drugs for the Developing World: an Economic, Legal, Moral and Political Dilemma’, Developing World Bioethics, I (2001) 11–32, and U. Schüklenk and R. Ashcroft, ‘Affordable Access to Essential Medication in Developing Countries: Conflicts between Ethical and Economic Imperatives’, Journal of Medicine and Philosophy, XXVII (2001) 179–95. Available online at http://www.wits.ac.za/bioethics/access.htm. For an extended discussion of these claims, see C. Barry and K. Raworth, ‘Access to Medicines and the Rhetoric of Responsibility’, Ethics & International Affairs, XVI 2 (2002) 57–70 (on which the present section draws.) 8 S. Scheffler, Boundaries and Allegiances (New York: Oxford University Press, 2001), p. 38. 9 For discussion, see A. Sen, ‘How to Judge Globalism’, American Prospect, XIII 1 (2002) A2–A6, and T. Pogge, ‘Achieving Democracy’, Ethics & International Affairs, XV 1 (2001) 3–23.

Global Justice 235 10 For discussion, see P. Fajnzylber, D. Lederman and N. Loayza, What Causes Violent Crime? (Washington, DC: The World Bank, Office of the Chief Economist, Latin America and the Caribbean Region, 1998), and M. Klare and D. Anderson, A Scourge of Guns (Washington, DC: Arms Sales Monitoring Project, Federation of American Scientists, 1996). 11 R. Bittner, ‘Morality and World Hunger’, Metaphilosophy, XXXII (2001) 25–34. See also Barry and Raworth. 12 For discussion, see D. Parfit, Reasons and Persons (Oxford: Oxford University Press 1984), chapter 3. 13 J. Rawls, Justice as Fairness (Cambridge, MA/London: Belknap Press, 2001), p. 7. 14 See, for example, B. Barry, ‘Humanity and Justice in Global Perspective’, in J. R. Pennock and J. W. Chapman (eds), Ethics, Economics, and the Law, Nomos XXIV (New York: New York University Press, 1982), pp. 219–52. 15 One can contrast ‘global’ justice, which assesses global institutions, with ‘worldwide’ justice, which summarizes all of the injustices that take place on the globe, regardless of whether they are due to unfair local, national, or global institutions. 16 Principles of allocation are discussed below. 17 C. Beitz, ‘Does Global Inequality Matter?’, Metaphilosophy, XXXII (2001) 95–112. 18 A. Sen, Inequality Reexamined (Cambridge, MA: Harvard University Press, 1992), p. 73. 19 J. Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971); ‘Social Unity and Primary Goods’, in A. Sen and B. Williams (eds), Utilitarianism and Beyond (Cambridge: Cambridge University Press, 1982), pp. 159–86; A. Sen, Commodities and Capabilities (Oxford: Oxford University Press, 1999). Conceptions of global justice that focus on countries, rather than persons, also implicitly draw on utilitarian, resourcist, or capabilities approaches. 20 For an interesting discussion of this theme in the context of state reform, see S. Reddy and A. Pereira, The Role and Reform of the State (New York: United Nations Development Programme, Office of Development Studies Working Paper Series, 1998). 21 See, for discussion, N. Woods, ‘The Challenges of Multilateralism and Governance’, in C. L. Gilbert and D. Vines (eds), The World Bank: Structure and Policies (Cambridge University Press, 2000). 22 See, for example, D. Miller, ‘Justice and Global Inequality’, in A. Hurrell and N. Woods (eds), Inequality, Globalization and World Politics (Oxford: Oxford University Press, 1999), pp. 187–210, H. Shue, Basic Rights (Princeton: Princeton University Press, 1980). 23 These approaches are ideal-types, which can overlap and be combined. 24 This view is largely endorsed by the majority of articles of the various human rights instruments developed in the past fifty years. Some exceptions include elements of the declaration on the right to development, and Article 28 of the Universal Declaration. 25 On distributive justice, see M. Walzer, Spheres of Justice (Oxford: Robertson, 1983). On citizenship, see D. Miller, ‘Bounded Citizenship’, in his Citizenship and National Identity (Malden, MA: Blackwell, 2000), pp. 81–96. For helpful

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26 27

28

29 30

31

32

33

34

35 36

37 38

discussion of both of these claims, see D. Weinstock, ‘Prospects for Transnational Citizenship and Democracy’, Ethics & International Affairs, XV 2 (2001) 53–66. For discussion, see C. Beitz, Political Theory and International Relations, [1979] 2nd edn (Princeton, NY: Princeton University Press, 1999) Afterword. They differ, then, from views that stress the importance of local factors such as culture, climate, resource endowment, and institutional structures within particular countries. See T. Pogge, World Poverty and Human Rights (Oxford: Blackwell, 2002), esp. pp. 118–45. See, for example, A. Hurrell, ‘Global Inequality and International Institutions’, in T. Pogge (ed.), Global Justice (Oxford: Blackwell, 2002), pp. 32–54. See, for example, Shue. See J. Stiglitz, Globalization and Its Discontents (New York: Knopf, 2002), pp. 3–23, 214–52, and R. Wade, ‘Showdown at the World Bank’, New Left Review, VII (2001) 124–37. Although the principles discussed here sometimes differ from those explored in his article, the discussion in the next section owes much to David Miller’s ‘Distributing Responsibilities’. Scheffler, p. 4. Many different distinctions have been offered to characterize this intuition, including those between doing and allowing, acting and refraining, making and permitting, and committing and omitting. These distinctions in turn have been invoked to ground still further distinctions such as those between killing and letting die and of negative and positive rights, duties, or responsibilities. For discussion, see Jonathan Bennett’s excellent The Act Itself (New York: Oxford University Press, 1995), pp. 105–38, and W. S. Quinn, ‘Actions, Intentions, and Consequences: The Doctrine of Doing and Allowing’, in A. Norcross and B. Steinbock (eds), Killing and Letting Die, 2nd edn (New York: Fordham University Press, 1994), pp. 355–82. The intuition behind this interpretation is that even when deprivations are overdetermined, those that are collectively involved in bringing them about must bear some responsibility for remedying them. For discussion, see A. Honoré, ‘Causation in the Law’, in Stanford Online Encyclopedia of Philosophy, available at http://plato.stanford.edu/entries/ causation-law/ and R. G. Wright, ‘Once More into the Bramble Bush: Duty, Causal Contribution and the extent of Legal Responsibility’, Vanderbilt Law Review, LIV (2001) 1071–1132. I am indebted to Thomas Pogge for discussion of this principle. Miller refers to this as the ‘community’ principle in Miller, ‘Distributing Responsibilities’, p. 462. See also H. L. A. Hart’s discussion of moral and legal responsibilities that attach to specific societal, institutional, or biological ‘roles’ in H. L. A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Oxford: Oxford University Press, 1968). For a spirited defense of a view of this kind, see P. Singer, One World: the ethics of globalization (New Haven: Yale University Press (2002), pp. 150–95. See, for discussion O. O’Neill, Towards Justice and Virtue (Cambridge: Cambridge University Press, 1996), pp. 91–121; R. Goodin, Protecting the Vulnerable: An Analysis of our Social Responsibilities (Chicago: University of Chicago Press, 1987), esp. p. 137.

Global Justice 237 39 For a discussion of these claims, see B. Barry, ‘Humanity and Justice’, and J. McMahon, ‘The Limits of National Partiality’, in R. McKim and J. McMahan (eds), The Morality of Nationalism (New York: Oxford University Press, 1997), pp. 107–38. 40 For a defense, see D. Miller, On Nationality (Oxford: Clarendon Press, 1995), esp. pp. 74–7. 41 See O. O’Neill, ‘Agents of Justice’. See also the discussion in C. Beitz, Political Theory and International Relations, 2nd edn (Princeton: Princeton University Press, 1999), esp. pp. 215–16. 42 For discussion, see Scheffler, pp. 58, 85. 43 Thomas Pogge has referred to (and criticized) a view of this kind as ‘lofty nationalism’. See Pogge, World Poverty, pp. 129–30, 144–5. 44 Compare this with the capacity criterion outlined by Daniela Kroslak in Chapter 9. 45 Miller, ‘Distributing Responsibilities’, pp. 460–1. As Miller points out, views of this kind may be sensitive both to the efficiency of different agents and institutions in bringing remedy, and the cost to these agents of doing so. For more detailed discussion of this principle see Shue, ‘Mediating Duties’, pp. 687–704. Richard Posner has endorsed a similar principle for the purposes of assigning responsibility in civil law, arguing that the person best placed to avoid the loss most cheaply should bear social costs. 46 R. E. Goodin, ‘What Is So Special About Our Fellow Countrymen?’, Ethics, XLVIII (1988) 663–86 (p. 678). As Miller points out in ‘Distributing Responsibilities’, views of this kind may be sensitive both to the efficiency of different agents and institutions in bringing remedy, and the cost to these agents of doing so. 47 See for discussion, Human Development Report 2001: Making New Technologies Work for Human Development (Oxford: Oxford University Press, 2001), pp. 116–17. 48 In a similar vein, Miller has recently argued that within solidaristic communities the substantive principle of justice is distribution according to need, while different principles apply to justice between different communities. See his Principles of Social Justice (Cambridge, MA: Harvard University Press, 1999), esp. pp. 26–7. 49 This phrase is adapted from ‘default duties’, which was coined by Shue in another context. For related discussions, see L. Murphy, Moral Demands in Non-Ideal Theory (New York: Oxford, 2000). Compare with Erskine’s notion of ‘default agents’, or ‘agents-of-last-resort’, in the conclusion to Chapter 1.

Index accountability, 9, 25, 44, 78–9, 84, 94–8, 138, 153, 160, 162, 184, 211 corporate, 138, 140–2 agency, 2–6, 8–9, 11, 19, 21–2, 24, 26–9, 31–6, 41, 43–4, 47–8, 51–63, 64n1, 69–72, 74, 77–8, 84–5, 87–8, 91, 100, 102, 104–8, 110, 113, 120–1, 124, 126–7, 134, 138–9, 147, 149, 152–3, 161, 162, 174, 183–90, 195, 200–1, 209, 213–14, 218–24, 226–33 artificial, 20, 23, 38n4, 44, 47 natural, 3, 20, 34, 38n4 collective, 29, 35, 38n12, 78, 81, 107–8, 140, 153, 209, 219–20 corporate, 23, 38n12, 41, 42, 44, 45, 46, 48, 96, 138–40, 146–53, 184–5, 200 informal, 9, 14n17, 58–60, 63, 74, 131 moral, 2–4, 6–11, 13n7, 13n9, 15n20, 15n21, 19–40, 41, 43, 45, 47–8, 49n1, 51, 55, 63, 64n1, 69–74, 76–9, 81, 84, 85–6, 87–8, 90, 91, 98, 100–6, 108, 111, 113–14, 119–21, 126–7, 133–4, 139–40, 146–54, 163, 184–6, 207–9, 211–15, 219, 221, 234 ‘overlapping’, 78–9 responsible, 15n28, 107 agent-structure debate, 3 AIDS, see HIV/AIDS altruism, 6, 52 anti-sweatshop movement, 9, 138–56 Arendt, Hannah, 38n11, 178n3, 185 Aristotle, 52, 64n3, 78, 101 Barkan, Elazar, 13n11, 216n7 Barnett, Michael, 13n11, 184, 185–6, 200 Barry, Brian, 12n2, 234n7, 235n14, 237n39

Beitz, Charles, 12n2, 224, 236n26, 237n41 blame, 1–2, 4, 6, 8, 10–1, 13n10, 16n33, 19–22, 24, 36, 54, 78, 84, 98, 159, 161, 183–4, 186–7, 190, 195–6, 201 Bull, Hedley, 5, 64n4, 65n10 Burke, Edmund, 58, 70 bystander, 159–82 Chomsky, Noam, 52, 62 Christianity, 90–1, 96–8 citizenship, 111–12, 226 Clinton, Bill, 95–6, 130–1, 133, 145 ‘coalition of the willing’, 60, 61, 63 Cold War, 111, 113, 121–2, 167 collective guilt, see guilt collectivity, 21–3, 36, 38n12, 39n20, 40n34, 49n2, 71, 159, 163–4, 171, 185 communitarianism, 12n2, 90, 151 compromise, 9, 60–83 Concert of Europe, 14n17, 59 conflict resolution, 75–6 Congress System, 59–60, 62 constructivism, 13n9, 14n12, 19, 53, 64n4, 81, 185 corporation, 21–3, 38n12, 43, 49n5, 54, 69, 70, 92, 94, 116n16, 138–43, 145–54, 163–4, 200, 219, 221, 227, 232 multinational, 69, 70, 200 transnational, 9, 25, 30, 73, 141, 150 cosmopolitanism, 12n2, 62, 224, 226–7 cosmopolitan democracy, 210 criminal guilt, see guilt culpability, 20, 37, 72 ‘dirty hands’, problem of, 80 distributive justice, see justice Doctors Without Borders, see Médecins Sans Frontières (MSF)

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Index 239 Dutch Government, 202n1 duty, 1, 4, 8, 11n1, 24, 26, 33–6, 40n50, 40n51, 51, 55, 81, 104–5, 108–11, 114, 115n14, 116n21, 149, 152, 166, 174, 183 English School (ES), 53–4, 58, 64n4, 65n5 ethnic cleansing, 123, 128, 130, 191 Feinberg, Joel, 11n1, 16n31, 115n8 Finnemore, Martha, 13n11 French Government, 21, 133, 160–2, 164–5, 167–76 French, Peter, 23–4, 83n11, 155n26, 163, 164, 185 genocide, 21, 15n27, 37, 51, 103, 128, 130, 159–82, 185, 190, 218 Genocide Convention, see United Nations Convention on the Prevention and Punishment of the Crime of Genocide global civil society, 62, 98, 99, 114 global governance, 10, 187, 207–17 global justice, see justice globalization, 143, 147, 210, 212, 227 Goodin, Robert, 11n1, 212, 236n38, 237n46 Graham, Keith, 11 Great Powers, 59, 60, 201 Greenpeace, 77 guilt, 21, 22, 37, 38n10, 38n11, 124, 132, 147 collective, 208, 38n10, 38n11 criminal, 38n10 moral, 20, 208 Gulf War (1990–1), 51, 61, 129 Habermas, Jürgen 62, 64 Hegel, Georg Wilhelm Friedrich, 45, 88, 99n12, 109, 111, 114 HIV/AIDS, 71, 220–1, 228, 230–1, 233 Hobbes, Thomas, 41, 44, 46–8, 49n4, 85 Holocaust, 22, 78, 159, 160, 163, 165, 177 Holy Alliance, 59, 60, 62 human rights 4, 12n4, 32, 51, 57, 58, 61, 64, 77, 103, 122, 123, 140,

145, 150, 165, 168, 171, 173, 197, 201, 211, 216n13, 216n14, 235n24 humanitarian intervention, 19, 56–8, 61–3, 123, 128–31, 174, 176, 190–3 identity, 23–5, 27, 29–30, 41, 42, 45, 46, 90, 107, 112, 139, 140, 147, 149, 150, 153, 185, 186 individualism, 12n5, 13n8, 163–4 inequality, global, 19 institution, 1–16, 19–40, 46, 47, 56, 58, 62, 69–83, 84–5, 92, 94, 96, 100–16, 119–37, 149, 151, 186–7, 189, 195, 199, 200–1, 207–17, 218–37 institutionalization, 59, 62, 108, 110–12, 208, 213 international community, 4, 25–6, 35, 37, 51–3, 55–6, 58, 107–8, 111, 112, 167, 189, 190, 192, 194, 196, 198, 200–1 International Criminal Court (ICC), 208, 211 international financial institutions (IFIs), 10 international humanitarian law, 127 International Labor Organization (ILO), 141–2 international law, 5, 15n27, 45, 55, 61, 63–4, 141, 211 International Monetary Fund (IMF), 107, 208, 209, 219 international society, 5, 9, 14n12, 25, 27, 28, 51–65, 113, 183 Islam, 95–9, 217n21 Jackson, Robert H., 20, 26–32, 50n13, 104–5, 112 Jaspers, Karl, 38n10 Jones, Charles, 12n2 Judaism, 97–8 just war tradition, 26, 58, 121, 125–7 justice, 12n4, 21, 57, 58, 62, 77, 126, 212–14 distributive, 109 global, 10, 218–37 social, 140 ‘worldwide’, 235n15

240 Index Kant, Immanuel, 88, 109–11, 114, 116n20 Keohane, Robert, 5, 14n13, 14n18 Kosovo, 9, 35, 51, 56–8, 60–3, 77, 119, 122–5, 128–32 Krasner, Stephen, 14n16, 58 labour rights, 141–2, 145, 148, 234 liberalism, 82, 88, 89 neo-liberalism/neo-liberal institutionalism, 3, 143, 210, 212 liberal internationalism, 52, 111, 112–13 Luhmann, Niklas, 53 MacIntyre, Alasdair, 88 Maitland, Frederick W., 49n2 May, Larry, 163–5, 167, 171–2, 176 Médecins Sans Frontières (MSF), 25, 77, 173 methodological individualism, see individualism Miller, David, 12n3, 218, 230, 235n22, 235n23, 236n31, 236n26, 237n40, 237n48 Milosevic, Slobodan, 48, 63, 128, 129, 132, 135n27 moral choice, 100–12, 104, 120 moral guilt, see guilt moral patient, 9, 100–16 moral reasoning, 1, 13n7, 102, 209 morality 11, 34, 35, 44, 50n14, 62, 70, 71, 99n12, 122, 222 multinational corporation, see corporation Nardin, Terry, 57–8 neo-liberalism/neo-liberal institutionalism, see liberalism neo-realism, see realism Nietzsche, Friedrich, 88 Nike, 75, 77, 138, 145, 148, 150, 152, 153 non-governmental organisations (NGOs), 10, 25, 30, 69–70, 72, 74, 77, 80, 81, 146, 168, 171, 173, 195, 200 norm, 2, 5, 12n5, 14n16, 28, 29, 51, 53, 60, 61, 63, 64, 64n1, 70, 71,

85, 93, 114, 122, 126, 145, 160, 165, 199, 207, 208, 210–13, 218, 219, 223, 226 North Atlantic Treaty Organization (NATO), 3, 9, 13n10, 26, 55, 56, 58, 60, 107–8, 110, 111, 113, 119–37, 192, 198, 199, 207 Nuremberg trials, 127, 162 O’Neill, Onora, 12n2, 12n4, 15n22, 27–8, 35, 38n4, 38n7, 39n18, 39n22, 39n28, 102, 108, 109–10, 230, 234n4, 238n38 Oakeshott, Michael, 49n4, 108, 116n15, 217n20, 217n22 obligation, 1, 11n1, 15n27, 19, 77, 101–2, 109–11, 114, 116n21, 128, 152, 162, 177, 202n2, 218, 219, 229 Pogge, Thomas, 12n2, 234n9, 236n27, 236n28, 236n35, 237n43 political psychology, 56 punishment, 4, 10, 37, 48, 126 for crime of genocide, 165–6 ‘quasi-state’, 19–20, 26, 28–34, 36, 47–8, 100, 104–7, 114 Rawls, John, 89, 116n21 realism, 13n7, 13n9, 19, 37n1, 48, 52, 62, 82, 125 neo-realism/structural realism, 3, 13n8, 13n9, 14n12, 51–2, 53 representation, political, 40n34, 41–50, 96 responsibility, 1–5, 7–8, 11, 20, 35, 42, 46–7, 54, 55, 69, 73, 78, 79, 96, 100, 105, 108, 109, 126–7, 139, 145, 151–2, 159–65, 167, 169, 172, 175–7, 183–5, 187–90, 193, 196, 199–201, 218, 222, 225, 227–32 artificial, 44 causal, 8, 16n29, 16n30, 71, 162 collective, 15n26, 21–2, 38n12, 42–5, 46, 48, 59, 74, 164, 167, 172, 176, 208 corporate, 23, 38n12, 39n13, 42–3, 45, 48, 139–41, 145, 149–50, 152–3, 184

Index 241 responsibility – continued legal, 7, 105–7 moral 7–8, 21, 25, 41, 44, 47–8, 73, 77, 78, 101, 103, 124, 185, 186, 188, 219 political, 44 prospective, 8–9, 33, 37, 162 retrospective, 8–9, 21, 37, 162, 172, 177, 202n2 Rio Declaration on Environment and Development, 142 Rousseau, Jean-Jacques, 42–3, 45, 49n4, 106, 111–12 Rwanda, 9, 25, 36, 40n35, 51, 56, 159–182, 185, 186, 190, 201 Scheffler, Samuel, 221, 228, 237n42 Sen, Amartya, 216n12, 224, 234n9 shame, 77, 98, 208 Shue, Henry, 12n2, 232, 234n6, 235n22, 236n29, 237n45 Singer, Peter, 12n2, 83n27, 103, 115n3, 136n22, 236n37 Skinner, Quentin, 27, 29 Smiley, Marion, 184, 186–7, 189 social justice, see justice sovereignty, 20, 26, 28, 30–1, 34, 36, 45, 61, 200, 222 Srebrenica, 9, 183–4, 186–7, 190–201 Strawson, Peter, 184, 188–9, 195, 200, 201, 219 structural realism, see realism transnational corporation, see corporation United Nations (UN), 3, 4, 5, 7, 9, 10, 13n10, 14n17, 15n23, 25, 39n20, 52, 55–8, 61–2, 74, 76, 77, 81, 85, 92, 94, 96, 128, 165, 167, 173, 175,

176, 183–203, 207, 208, 209 Charter, 55, 61, 85 General Assembly, 92, 106, 107, 114 Security Council, 55–60, 62, 74, 92, 107, 111, 113, 167, 174–5, 184, 186, 187, 190–2, 194–8, 200–1, 209 United Nations Assistance Mission for Rwanda (UNAMIR), 167, 172, 174, 176 United Nations Commission on Human Rights, 171, 173 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), 159, 160, 162, 165–6, 172, 175, 177 United Nations Development Programme (UNDP), 152 United Nations High Commissioner for Refugees (UNHCR), 128, 194 United Nations Protection Force (UNPROFOR), 190–7 United States (US), 35, 52, 56, 60–3, 75, 79, 96, 123, 125, 129, 132, 141–5, 150, 151, 153, 183, 191, 201 Universal Declaration of Human Rights, 142, 223 Walzer, Michael, 40n50, 126, 235n25 Warner, Daniel, 38n8, 38n9, 178n9 Weber, Max, 44, 47, 185 Wendt, Alexander, 13n8, 13n9, 19, 64n4 Wittgenstein, Ludwig, 87 World Bank, 5, 77, 152, 208, 209, 210, 219, 226, 227 World Trade Organization (WTO), 208, 210, 227 World War II, 28, 78, 80, 208