4 Human rights, global justice, and disaggregated states: John Rawls, Onora O'Neill, and Anne-Marie Slaughter

American Journal of Economics and Sociology, The, Jan, 2007 by Alyssa R. Bernstein

ABSTRACT. Human rights are urgently important rights that all individual persons may validly claim and that all governments are obligated to respect. According to some philosophers, no government can plausibly claim legitimate authority unless its legal and political system ascribes such rights, and no society can plausibly claim to be just unless it has a legitimate government, John Rawls presents his own version of this conception in the context of his account of the moral basis of a just global system of public law, which he calls the Law of Peoples. According to some of his critics, including Onora O'Neill, not only is the Law of Peoples statist, but also it relies on a false view of the state. O'Neill has developed a new conception of an ideally just global order in which states have fewer, and corporations more, powers and obligations to secure human fights, in contrast to Rawls's conception. Her conception is consistent with Anne-Marie Slaughter's account of the transformation of state sovereignty due to globalization.

However, contrary to initial appearances, it is not the case that O'Neill's and Slaughter's views taken together require significant modification of Rawls's conception of human rights. There is no fundamental conflict between Rawls's conception of human rights and Slaughter's account of state transformation. And O'Neill's criticisms of Rawls's view are unwarranted.

I

Introduction

ACCORDING TO A CURRENTLY INFLUENTIAL philosophical conception, human rights are best understood as a set of urgently important rights that all individual persons may validly claim and that all governments are obligated to respect because no government can plausibly claim legitimate authority unless its legal and political system ascribes such rights, and no society can plausibly claim to be just unless it has a legitimate government. This conception is endorsed (explicitly or tacitly) by a number of contemporary philosophers, (1) but few have developed systematic justifications of it other than John Rawls. He presents his own version of this conception in The Law of Peoples (1999). (2) According to some of his critics, it relies on a false view of the state. I will argue to the contrary.

Over the past half-century, since the Universal Declaration of Human Rights (UDHR) was issued, the capacities and functions of state governments have changed as international organizations (both governmental and nongovernmental) have proliferated and become increasingly powerful. Over the past dozen years, accelerating globalization has generated much scholarly and public discussion, and many have argued that the international institutions created after World War II must be reformed or reinvented in order to take account of new political realities. These include, according to Anne-Marie Slaughter, (3) "two major shifts: from national to global and from government to governance." (4) Furthermore, a third important shift is now occurring, she argues: states are becoming "disaggregated" as transnational government networks become increasingly important for world order in the 21st century. More than ever before, officials of domestic governments are engaging in activities beyond the boundaries of their states, due to increased capacities as well as increased needs for doing so. As a consequence, the long-dominant concept of the unitary state is giving way to the concept of the disaggregated state as the structures of domestic government become more international. (5)

In the new order Slaughter sees emerging, and advocates, it will not be "up to 'the state' to uphold human rights." (6) Instead, it will be up to transgovernmental networks consisting of officials of particular branches of different state governments, as well as "broader policy networks, including international organizations, NGOs, corporations, and other interested actors." (7) The members of these networks would be the bearers of the obligations created by treaties and other international agreements.

How, if at all, does the emergence of such a world order bear on the above-described philosophical conception of human rights? Does it render it obsolete, either entirely or partially? Or should we instead conclude that what requires modification is not this conception of human rights but this new world order? In what follows I will argue that the emergence of this new world order does not render this conception of human rights obsolete but instead requires that it be further developed.

Among the reasons for the transformation of state sovereignty in this era of globalization is the increasing power of large transnational corporations. Thus the question arises: If states are losing power to corporations, are states also losing some of their responsibilities and rights, and are corporations acquiring some or all of these, including responsibilities to respect, uphold, and secure human rights? Can corporations acquire and fulfill such responsibilities? If so, does justice require that they do so?