26 juli 2014

Folkrätten är omoralisk

De senaste dagarna har jag hamnat i Twitterdiskussioner om folkrätten. Folkrättens kärna är staters okränkbara suveränitet. På grund av detta kan inte folkrätten vara någon moralisk ledstjärna i internationella relationer. Jag skrev om detta för sex år sedan.

Folkrätten har kritiserats av många under lång tid. Huvudinvändningen är att befintliga ledare ses som legitima bara för att de är befintliga ledare, oberoende om det är demokratiskt valda eller inte.

Fredrik Segerfeldt skriver i FN: Spruckna drömmar (Hydra förlag, 2011):
Det handlar varken om "folk" eller "rätt", utan om "stater" och "makt".
Juridikprofessorn Fernando R. Teson kritiserar folkrätten i A Philosophy of International Law (Westview Press, 1998):
The traditional view is that any individual who has succeeded in exacting obedience from the individuals that populate the state is deemed automatically to represent the state. ...

This is also the default position of governments and international lawyers. For them, with very few exceptions, a government is presumed to represent the state. Governments routinely send ambassadors to present their plenary powers to other governments, thus legitimizing their standing as representatives of their people, even in the face of clear evidence that the government does not represent anybody but is, say, a despotic dictator that acceded to power by brutal violence. The same is true with other areas of international law such as the law of treaties. International lawyers take this ruthless reality of diplomacy as evidence for their statist thesis. But the point of the Kantian thesis is precisely to show that the practice of treating morally objectionable rulers as legitimate governments is wrong. It follows that the legal theory that supports that practice (the "legalist" version of statism) is equally wrong.


Yet the theory of effective power, widespread as it is, cannot be defended under any plausible legal, moral, or political theory. Any theory of law has to distinguish between naked political power and legitimate authority, between purely physical coercion and justified coercion. Lawyers and philosophers (at least in liberal democracies) draw this distinction in all areas of the law, except in international law. International law thus becomes amoral, indifferent to principles of morality and legitimacy that most people consider essential in all other fields of law and politics. Again, it might well be that it is not right to intervene to alter an unjust political arrangement, but that will occur for independent reasons, not because the unjust arrangement is legitimate in some independent sense.
Om när en militär intervention är legitim:
Two conditions apply to the potential intervenor: its cause has to be just and its government has to be legitimate. We saw that the only legitimate aim of the intervenor is the protection of human rights. In some cases, as discussed above, there are moral reasons to make war, and, a fortiori, to perform less intrusive international acts. The overriding aim of a just war is the protection of human rights. A government's war to defend the rights of its citizens, when they are being violated by a foreign aggressor, is called self-defense. A government's war to defend the citizens of the target state from human rights violations by their own government is called humanitarian intervention. The second condition is that only a legitimate government has moral standing to carry out a legitimate operation (military or otherwise) as a government Dictators may not validly perform acts of intervention. The reason is straightforward. The vertical contract is invalid and the agency relationship is spurious; consequently, the government cannot validly act on behalf of the citizens of the state. Its international acts, and in particular its coercive acts, such as war and acts of intervention, are invalid qua acts of the state.
Om det felaktiga i att jämställa staters självbestämmande med individuell frihet:
But what does it mean to say that a state is free? It can only mean that the government of a state can make political decisions free of constraints from other governments. Whether or not this is a good thing in itself is open to question, but in any case the government's freedom cannot be a good thing for the same reasons an individual's freedom is a good thing. In particular. where a government's freedom consists in wielding (internally or externally) the coercive power of the state, that action has to be justified, like all exercise of political power, with the tools of political morality. In other words: while an individual's exercise of freedom is generally an intrinsic good, a government's exercise of sovereignty, that is, power over others, is not. Thus, the domestic analogy ("sovereignty is a good thing for the same reasons individual freedom is a good thing") fails.


After all, illegitimate governments are no more than gangs of outlaws, usurpers.

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