[Draft]

International Obligations for Human Rights and Their Priority: The Humanist Strategy,
The Cosmopolitan Strategy and The Avoidance Account

Julio Montero
National Research Council of Argentina
Buenos Aires University, Argentina

1. Introduction
There is consensus among philosophers and political theorists that human rights impose
obligations beyond borders. However, the precise grounds, content and nature of such
obligations is subject of deep controversy. What must governments do for the human rights of
people living in other countries? What do they ought to them as a matter of human rights? This
is the topic of this essay.

Current international law offers no straight response for this query. Although it proclaims a
principle of international cooperation for human rights, there is persistent disagreement about
what this principle exactly requires. Does it require, for instance, that the international
community monitors compliance with human rights norms on the part of governments, holds
them to account for their behavior, and sanctions offending regimes? Or does it simply license
its participants to do so in order to promote some common values and aims such as those
proclaimed in the UN Charter? Does it require that it dispatches humanitarian interventions to
stop massive human rights violations when they cannot be prevented by other means? Does it
require, perhaps, that its participants actively contribute to the universal realization of human

rights by providing assistance to poor societies to enhance their capacities?1 If so, where do
these obligations come from and what status do they have? Are they moral or purely positive
requirements steaming from legal instruments and other international agreements? Would they
have normative force even in the absence of present human rights doctrine? Do they take
priority over the promotion of important domestic goals, such as the achievement of internal
justice? Or are they instead mere humanitarian commitments that governments may discharge
when this does not interfere with their national interest?

In a 2005 Wold Summit, the international community made a preliminary attempt to address this
fundamental issue. In the resulting document, participants agree that they have an obligation to
act in order to prevent the specific offenses of genocide, war crimes, ethnic cleansing and
crimes against humanity in other countries (UN 2005). Unfortunately, this obligation is extremely
limited in scope and neither its grounds nor its precise implications are worked out or explored
by the text. This is why many legal scholars conclude that the responsibility to protect amounts
to a vague declaratory commitment lacking real binding force (Glanville 2012; Buchanan 2013:
24-25). So, for instance, Alan Buchanan asserts that the responsibility to protect movement has
sopped short of creating a new legal obligation (Buchanan 2013: 282). This may imply that
even in case of grave abuses states have discretion to decide what to do, and that those whose
human rights are in peril have no corresponding claim to be helped by them (Glanville 2012:
15). In fact, this is how most governments have so far interpreted the obligations entailed by the
document.

In recent philosophical literature it has been suggested that besides monitoring compliance with
human rights standards, the international community should also aid those nations which are
unable to deliver on the fundamental needs of their inhabitants. In this vein, John Rawls argues

that the Society of Peoples must assist those burdened societies lacking the political traditions,
the human capital, and the material resources to determine their own path and to fulfill their
responsibilities towards their residents (Rawls 1999: 111). Similarly, in his recent book The Idea
of Human Rights, Charles Beitz maintains that when states are unable to satisfy the human
rights of their members, outside agents have a prima facie obligation to help them do so (Betiz
2009: 36). Finally, some cosmopolitan authors such as Thomas Pogge insist that the
international community has a stringent duty to do as much as possible to bring about the
realization of human rights everywhere (Pogge 2002: 196-201).

While morally appealing, these views have weak legal foundations and the obligations they
invoke appear to play no relevant role within current human rights practice.2 Except for sporadic
acts of humanitarian assistance in cases of genocide, civil wars or major natural catastrophes
the international community provides no significant aid to poor societies, and even when it does
the aid tend to be rather minimal. As Buchanan explains: At present, the clearly discernible
pattern is that states generally do not act as if they had a genuine legal obligation to secure
human rights when a state defaults its obligations (Buchanan 2013: 283). Furthermore, from a
philosophical point of view it may be wondered why governments should devote efforts and
resources to promote the situation and life prospects of distant strangers who are starving or
being oppressed by their own rulers. After all, the mere fact that we regard a certain state of
affairs as morally desirable may not be enough to conclude that we bear an obligation to act to
bring it about (Author XX).

In this essay I suggest a philosophical account of the international obligations entailed by

human rights, of their priority, and of their moral foundations. More concretely, I maintain that
human rights involve two specific duties falling on the international community. The first one is a

duty not to contribute to the perpetration of human rights violations in other countries. This duty
requires that the international community refrains from enforcing the sovereignty of human
rights-violating governments and that its members offer immediate asylum to those whose
human rights are in danger. The second duty amounts to an obligation to make sure that no
state is deprived of the resources required for fulfilling the human rights of their residents due to
the existence of international regulations. As I will argue, because compliance with these
obligations is a condition for the legitimacy of an international order that sanctions the existence
of a states system like the one we now encounter, they enjoy prima facie priority over the
promotion of the national interest and the achievement of domestic justice. Therefore, when the
international community fails to reasonably discharge them, it renders nothing more than a
forceful imposition lacking binding force and has no genuine authority over nations and
individuals.

The essay starts by discussing two potential strategies for justifying international obligations for
human rights which are well known in contemporary debates. These are the humanist strategy
and the cosmopolitan strategy. In spite of their potential, I expect to prove that these views are
partially problematic and will therefore proceed to propose an alternative account: the avoidance
account. According to this approach, human rights perform two complementary functions. The
first function is to restrict the treatment that governments may give to their residents, whereas
the second one is to lay out some necessary conditions for the acceptability of the present
states system. In particular, the avoidance account claims that governments are legitimate if and
only if they respect, protect and fulfill the human rights of their inhabitants, while the states
system is legitimate only if it creates no additional risks for the enjoyment of human rights or
undertakes reasonable measures for averting those risks. Finally, I will explain how this

proposal differs from other theories, including some views that appear to be inspired in a similar
intuition or normative principle.

Two clarification points are in order before I get into this. First, there are several elements in
current international law that may provide support to the avoidance account. These include,
among others, the principle of international cooperation already mentioned as well as some
articles and passages in many human rights instruments. However, this is not an essay on legal
human rights and it is not aimed at deriving normative consequences from legal documents.
The essay rather aspires to construct a moral account of what obligations human rights impose
beyond borders independently of the existence of legal instruments. Thus, although the
independence account is not completely foreign to current international law, it is expected to
provide us with extra-legal reasons for interpreting human rights doctrine in its best light and for
reforming the rules governing present human rights practice when necessary.

Second, among experts there is considerable disagreement about the content of human rights.
Current human rights doctrine recognizes an expensive list of entitlements, including among
others the right to periodic holidays with pay, the right to form trade unions, and the right to the
highest attainable level of physical and mental health. However, many authors complain that this
doctrine is overinflated either because it contains too many rights or because it smuggles liberal
aspirations into a normative category that should be politically neutral (Rawls 1999; Miller
2007:163-200; Walzer 1994: chapter 1). As a result, they propose to regard human rights as
protecting some subset of these rights. On the other hand, there are theorists who believe that
human rights instruments should include further entitlemets, such as those to full democratic
institutions, to friendship, and to be able to live with concern for and in relation to animal, plants

and the world of nature (Nussbaum 2002: 129-130. See also Gilabert 2012; Valentini 2012:
589-590).

Evidently, this is a complex debate that merits separate consideration. In this essay, I will
understand human rights as covering three general categories of rights. These include: civil
rights, such as those to adequate amounts of personal security, freedom of movement, freedom
of conscience, freedom of expression, freedom of association, and due process; political rights,
such as the right to form political parties and to chose ones authorities trough periodic
elections; and subsistence rights, such as the right to and adequate diet, elementary education,
minimal health care, and decent housing. I am perfectly aware that this account may be
challenged. Some may protest that it is still too expansive, while others may object that it is
extremely modest. My expectation is that most readers will accept this provisional
understanding as reasonable. While it is not completely faithful to present international law, is
not significantly inconsistent with it either. Once my argument about the international
implications of human rights norms has been fully developed, this may offer further reasons for
endorsing the view I have suggested. 3 If some readers nonetheless persist in rejecting it, then
they may reshape the avoidance account in view of what they take to be the true content of
human rights. The avoidance account is just an abstract framework for working out the
international implications of human rights which is to a certain extent independent from more
substantive issues.

2. Two Familiar Strategies

In specialized literature, two powerful strategies for working out the international implications of
human rights have been developed. These are the humanist and the cosmopolitan strategy.4 I
will examine them and comment on their limitations in turn.

The humanist strategy

This humanist account of human rights has been defended by authors as influential as Alan
Gewirth (1982), Martha Nussbaum (2002), James Griffin (2008), John Tasioulas (2002), and
Amartya Sen (2011), among others. According to this conception, human rights are a special
class of natural rights aimed at protecting certain normatively salient features, interests, or
capacities of human beings from the activities of all other agents. So, for instance, James Griffin
argues that human rights intend to preserve personhood, where personhood points to our
capacity to form and pursue our own picture of what a valuable life would be. Thus, from his
perspective human rights are claims we enjoy just in virtue of being human, which burden
everyone else with negative obligations not to undermine the interests they preserve and
positive ones to contribute to advancing those interests according to ones capacity (Griffin
2008: 99. See also Nussbaum 2002; Sen 2011; Gewirth 1982: 41-67).

This view is certainly appealing. It accounts for the tenet that human rights are universal and
derive from the intrinsic dignity of the human person. At the same time, the humanist account
looks capable of easily explaining why human rights may impose obligations beyond borders. If
we are all bound to contribute to promoting their fulfillment, it is evident that the international
community is responsible for looking after their universal realization both by undertaking
measures aimed at protecting individuals from abuses and by assisting those people whose
human rights at risk through no fault of their own.

There are several problems with the humanist strategy, however. As it has been repeatedly
pointed out in the literature, this view appears to misconceive the role that human rights norms
perform within contemporary political life. In this vein, many authors argue that they are not

claims that we enjoy against all other agents, but standards that regulate the conduct of states
and, perhaps, of other political agents such as global governance institutions (Beitz 2009: 102;
Sangiovanni 2007: 16; Raz 2010: 328). In fact, if we discovered that our neighbor has been
inspecting our correspondence we would hardly call this a human rights violation, unless we
could prove that she belongs to a state agency or is following the directives of some authority
(Pogge 2002: 57). The normative idea underpinning this intuition is that because of the
particular power they wiled, political agents bear special responsibilities towards those in their
purview and that the notion of a human rights violation aims to express the particular sort of
wrong that political agents commit when they fail to live up to these unique responsibilities
(Author XX).

There is a second and perhaps more important problem with the humanist strategy. The
problem is that it assumes that everyone is under an obligation to contribute to the promotion of
our fundamental interests just because we are human beings. This assumption is controversial,
however. Even if we have a duty to help others in dire straits when we can easily do so, this
does not imply that we have a similar obligation to contribute to providing foreign strangers with
continued access to the objects of their human rights. As already mentioned, the mere fact that
we think that a certain state of affairs is valuable may not suffice to conclude that we must act to
bring it about, especially when this may interfere with the achievement of our own aims and
projects. 5 This is why some authors think that positive obligations to advance the prospects of
others can only result from special ties or relationships, such as social cooperation, common
citizenship, or joint participation in an institutional regime (Nagel 2005; Sangiovanni 2007). If this
objection is plausible, the humanist strategy would provide an extremely contested ground for
international human rights obligations. Therefore, it may be convenient to look for some
alternative justification.

The cosmopolitan strategy

The second strategy I want to consider derives from the cosmopolitan account of human rights,
originally put forward by Thomas Pogge. This conception proposes to understand human rights
as claims directed against any institutional regime that is coercively imposed on human beings.
From this perspective, any coercive setup including the present international order has an
obligation to provide people with secure access to the objects of their human rights to the extent
possible . Otherwise, it would be responsible for a massive human rights violation (Pogge 2002:
64-67).

According to Pogge, this view finds textual support in article 28 of the Universal Declaration,
which establishes that Everyone is entitled to a social and international order in which the rights
and freedoms set forth in this Declaration can be fully realized. In Pogges reading, article 28
implies that human beings enjoy a more fundamental meta-right right not to be imposed
regulations that may avoidably deprive them from access to the objects of their human rights. It
is important to mention, however, that this obligation does not simply require that the
international community refrains from actively hampering human rights satisfaction. To the
contrary, fulfilling this mandate takes introducing any feasible reform that may contribute to
maximizing human rights realization around the globe (Pogge 2005). The reason for this is that
the baseline for assessing the acceptability of an institutional setup is not an scenario where
that setup is absent, but one in which it does its best to advance the satisfaction of human rights
(Author XX).

This account has the evident advantage that it attempts to ground human rights claims on
relational grounds. It is because the international order exerts coercion over us that its

participants have an obligation to look after our life prospects. This seems to provide a more
robust foundation for international human rights obligations. Even though we may not have a
legitimate claim to have our interests promoted by others just in virtue of our humanity, it is
reasonable to think that when we live under coercive arrangements which may deeply affect our
wellbeing, those sustaining them may become responsible for advancing our fundamental
interests.

Unfortunately, the cosmopolitan account also exhibits an important drawback. To see why,
imagine a group of nations living in an international state of nature. At some point they decide to
join together and implement some common rules for facilitating trade among them. Even if such
regulations are coercive as anyone refusing to respect them would be sanctioned or face
important economic disadvantages, it seems unreasonable to conclude that its participants are
now responsible for the universal realization of human rights just because of this. If the
agreements adopted are fair and meet a standard of reciprocity, they will be beyond reproach
and their existence should trigger no further demands across borders.6

Of course, the current international order is not comparable to this imaginary scenario as it
contains myriad of structures, institutions, and regulations. However, the above example may
suggest that we must adopt a more pluralistic justificatory framework, that is: a framework in
which human rights obligations are sensitive to the particular kind of coercion that alternative
institutional structures exert over us and to the specific threatens they pose to our wellbeing
(Cohen and Sabel 2006).

Two potential objections are worth considering. The first objection claims that the cosmopolitan
account is not meant to apply to any set of coercive regulations but only to those that are

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practically inescapable for its participants. This is why they would not apply to the imaginary
situation I have just described as even if quitting the cooperative scheme involves important
costs, states could still decide not to join it. However, the actual costs of opting out of the current
international order would be so high that no state would be able to afford them. Because this
fact would render the international order practically inescapable, it would trigger a global
obligation to look after everyones human rights.

In response to this objection, it is worth mentioning that we can imagine a cooperative scheme
of the sort I have suggested which is practically inescapable for its participants. Imagine, for
instance, that some state is able to produce technological goods at highly competitive prices but
completely unable to produce enough food its population. If so, participation in the cooperative
scheme would be unavoidable for it. However, this would not justify the conclusion that
participants in the scheme are now responsible for maximizing human rights satisfaction to the
extent possible either globally or in that particular country. It rather appears the they are only
bound to refrain from taking unfair advantage of this country by imposing exploitative or unjust
exchange conditions on it.

The second objection argues that Pogge backs his conclusions on an analysis of the effects that
certain global arrangements have over human rights satisfaction. Along these lines, he explains
that because the present international setup confers oppressive governments a right to trade
their resources and ask for external loans, it contributes to the emergence of authoritarian
regimes and makes democratic transitions more difficult. He also discusses the ongoing trade
agreements, which have significantly eroded the capacity of the poorest nations to deliver on
the human rights of their residents by imposing exploitative exchange conditions on developing
countries (Pogge 2005). However, it is hard to see why any of these features would justify

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burdening the international community with a comprehensive obligation to advance human

rights satisfaction on a planetary scale. In fact, the threats these regulations create could be
avoided by amending them or by adopting alternative rules or schemes. If, as Pogge thinks,
human rights impose more expansive obligations across borders, they cannot be justified by
reference to these sole characteristics. Further arguments are required.

It is important to emphasize that these comments are not aimed at proving that the
cosmopolitan strategy is completely misguided. To the contrary, my impression is that its attempt
to ground human rights obligations on coercive relational grounds is correct. My conclusion is
instead that before figuring out what specific human rights obligations the continued existence of
the current international order imposes on its participants we need to gain a better
understanding of the precise kind of coercion it exerts over human beings, figure out what
particular risks it brings about, and explain why this is problematic from a moral point of view.
This is the task I will undertake in the remainder of this essay.

3. An Alternative Strategy: The Avoidance Account

I will now start to develop an alternative argument for justifying international human rights
obligations. Like the cosmopolitan account I will consider human rights to be relational in nature.
This means that they are not rights we enjoy against all other agents just in virtue of our
humanity, but rights that constrain the activities of systems and institutions that are coercively
imposed on us. 7 However, I will not simply assume that any institutional order is bound to
promote the universal realization of human rights just because it is coercive. Similarly, for
reasons I have already explained, I will not assume either that the duty not to impose unfair
institutions on others automatically entails that such institutions should undertake all feasible
measures to ensure human rights fulfillment. Instead, applying a pluralistic framework of the sort

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suggested, I will make an attempt to understand how the international setup coerces those
under its purview and derive some concrete human rights obligations from its specific
characteristics. Consequently, my strategy will be relational, though not cosmopolitan not at
least in Pogges sense. In order to differentiate this view from others, I will refer to it as the
avoidance account.

The avoidance account is grounded on an more modest interpretation of the moral principle
animating article 28 of the Universal Declaration. According to this interpretation, the article
expresses a minimal condition for the moral acceptability of coercive international
arrangements. This condition does not require that the international community advances
human rights satisfaction to the extent possible; it simply requires the it refrains from creating
risks for their fulfillment or that it undertakes reasonable previsions for averting such risks when
they are unavoidable.8 Thus, the benchmark for assessing the legitimacy of the international
order is not a situation where such order was arranged so as to maximize human rights
satisfaction. It is rather a situation in which there were no coercive international order altogether.

To illustrate the point, imagine an international landscape containing no international institutions

or regulations. In such scenario, our fundamental interests could of course be hampered by our
own governments. This risk is intrinsic to the existence of political authorities concentrating a
considerable amount of power. Imagine now that a coercive international setup is created in
order to facilitate cooperation among states, promote certain common goals, or produce some
other benefits for its participants. If this order brings about additional risks for the fulfillment of
our human rights i.e. risks that were not present in the antecedent situation then, it must
adopt reasonable previsions for averting or significantly mitigating them (Buchanan 2013:

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121-130). Otherwise, its legitimacy would be undermined and neither nations nor individuals
would be bound to respect it.

Three aspects of the avoidance account are worth stressing before proceeding. First, this view
promises to offer a more ecumenical framework for thinking about international human rights
obligations. This is so because it does not presuppose that we are entitled to have our interests
advanced by others just in virtue of our humanity, or that the international oder must strive to
maximize human rights satisfaction. Instead, it simply assumes that being purposive agents
endowed with reason and conscience, we have a claim not to be imposed coercive
arrangements that create specific risks for the enjoyment of our human rights. This claim
amounts to a purely negative duty on the part of others, comparable to a duty not to harm us
rather than a positive duty to provide us with benefits or protect us from being harmed by third
parties. As a result, the avoidance account may be acceptable, or at least less troublesome, for
those who oppose the existence of positive non-relational obligations to improve the situation of
others, including perhaps some libertarians9.

Second, the avoidance account is not a view about the conditions that the international order
ought to satisfy in order to be fair. It is just a view about some of the conditions it ought to satisfy
to be legitimate. The distinction between justice and legitimacy is an important one. It is
normally accepted that when an institution or set of regulations is legitimate, those under its
purview are morally obliged to comply with its demands. Instead, an institution or set of
regulations is fair when it distributes the burdens and benefits they entail according to some
ideal standard of how this distribution ought to be carried out. While fair institutions or
regulations would most likely be legitimate, partially unfair institutions could nevertheless be
legitimate (Buchanan and Keohane 2006). Thus is why we can have common institutions

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performing valuable moral tasks and producing benefits for us even if we deeply disagree about
justice. Consequently, the fact that an institutional regime satisfies the avoidance account does
not entail that it is fair. It simply means that if other conditions obtain individuals and
nations have moral reasons for complying with its regulations and to resist any injustices it may
perpetrate by pushing for an internal reform.

Third, the avoidance account only articulates some necessary conditions for the legitimacy of
the international order. Thus, to be legitimate the international order may be required to satisfy
additional requirements. For instance, it may be argued that its rules must result from
democratic or otherwise participatory mechanisms; or that they must take equally into account
the interests of all its participants; or that its institutions must contain suitable mechanisms for
justice-oriented internal self-reform (Buchanan and Keohane 2006). The avoidance account
remains silent as to what the complete conditions for legitimacy are and simply regards respect
for human rights as a subset of them. 10 In other words, the international order may satisfy the
avoidance account and be illegitimate for other reasons.11

4. The Avoidance Account and the States System

In the reminder of this essay, I will discuss the conditions that an international order that
sanctions the existence of a states system or of any comparable system of balkanized
sovereignty must satisfy according to the avoidance account. These conditions will function as a
benchmark for assessing the moral acceptability of international arrangements, regulations and
institutions. More concretely, when these conditions are not satisfied, the states system
becomes illegitimate and neither individuals nor nations are bound to respect it and may
challenge its authority.

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It is evident that the kind of coercion that the present international order wields over us is not
comparable to the one states exert over their residents. International institutions claim no right
to shape our sphere of agency, to monopolize the use of force, or to enforce property
regulations among members of a human community. Therefore, according to the independence
account, it would be unreasonable to burden those who contribute to maintaining them with the
same human rights obligations we assign to states (Blake 2001; Nagel 2005; Risse 2012:
23-28). Yet, it is undeniable that the states system is coercive in nature. In particular, it coerces
us by recognizing and enforcing the right of states to rule over their territory and their
population. When I say that this right is enforced by the states system I mean that its enjoyment
is protected by a legal framework which entitles governments to resist anyone interfering with
their sovereignty and their territorial integrity and to ask for international assistance to preserve
their autonomy and self-determination (Buchanan 2013: 121-124; Dworkin 2013: 15-22).

The existence of the states system is of course extremely beneficial for nations and their
inhabitants. The powers and prerogatives its confers to states allow them to protect their
residents from external threats, pursue collective goals, and promote their own conceptions of
justice. It also creates improved opportunities for political participation, for the flourishing of
communal sentiments, and for the development of particular cultures and collective identities.
Importantly, the right to development recognized by several human rights instruments, including
in particular the Covenant on Economic, Social and Cultural Rights and the Declaration on the
Right to Development may render void if governments were unable to dispose of their resources
and adopt autonomous economic policies and long term plans. These may be some of the
normative reasons supporting the continued existence of the present international setup and the
principles of sovereignty, territorial integrity, and self-determination that lie at its very heart.

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In spite of these advantages, the states system compromises the freedom and autonomy of
human beings in two significant ways. First, by recognizing states a right to prevent other
nations from interfering with their internal affairs, those in their power become unable to request
external assistance to resist abusive regulations (Buchanan 2013: 122). However, from a moral
point of view there is no reason why outside agents should refrain from obstructing the activities
of a government that is deeply unfair or that severely mistreats its members. Actually, this
aspect of the traditional states system has been considerably transformed by the adoption of
contemporary human rights instruments, which license the international community to undertake
remedial actions when human rights are systematically violated. In the next section I will make
an attempt to prove that besides having an authorization to sanction offending regimes, the
international community also has a high priority duty to do so.

Second, by recognizing states a right to control their borders and to dispose of their resources,
the states system prevents both foreign individuals and foreign nations form entering their
territory or using the resources located within it to promote their own interests or satisfy their
needs (Buchanan 2013: 257; 2010: 265; Ypi 2014). Although the right of states to control the
geographical space they occupy is one of the cornerstones of present international law, its
enforcement is morally problematic. To see this, imagine a situation where no agent had
exclusive control over any specific area of the Earth or permission to prevent non-nationals from
entering their jurisdiction. In such setup, people and groups would be free to move from one
place to another looking for more favorable living conditions, to establish themselves in any
region, and to use whatever assets they may find to pursue their aims provided they respected
the physical integrity and the equal right of others to do the same. If they are prevented from
doing so, this would count as illegitimate coercion and they would be entitled to resist it. On the
other hand, when states enjoy exclusive property rights over their territory, this imaginary

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situation is radically altered: human beings are confined to lead their lives within the margins of
their own states and both individual persons and political communities are excluded from using
any holdings belonging to other nations, from trespassing their boundaries, or from settling in
their land without permission (Ypi 2014).This strongly suggest that the coercive enforcement of
territorial rights imposes severe constraints on the freedom and autonomy of individuals.

There is an important objection against this argument that merits consideration. This objection
claims that the right of states to own the area they occupy is prior to, or independent of, the
existence of a states system or other international regulations. Thus, any international legal
framework failing to recognize it would be illegitimate or deeply unjust. Along these lines some
authors maintain that the territorial claims of states may be justified by reference to the property
rights of their inhabitants. In contemporary debate, these Locke-inspired views are normally
designated as acquisition-based theories of territorial rights. In a nutshell, they maintain that
individuals may acquire previously unowned external objects by productively intervening over
them, and then agree to subject themselves to the jurisdiction of a political authority that
effectively protects their entitlements (Steiner 2005; Ypi 2013; Stiltz 2011: 576-578).

Instead, other authors think that the reason why states have a right to control their territory is
that their political communities have developed particular attachments to it along time and
history. These theories are designated as nationalist accounts of territorial rights. From their
perspective, nations have legitimate territorial claims because this grants their members access
to places that are culturally significant for them, allowing their peoples to decide how such
places are to be protected and managed (Miller 2007). If we think that preserving ones cultural
identity is morally valuable, then this value may well justify the exercise of territorial rights.

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Finally, there is a third group of theorists who argue for legitimacy-based accounts of territorial
rights. These views emphasize the moral functions that territorial states perform, including in
particular the establishment of a legal order that implements their human rights and creates
improved opportunities for self-government. Since states realize this valuable moral task and
control of their territory is regarded as a necessary condition for doing so, they are considered to
be entitled to dispose of the geographical space they occupy and to exclude others from
accessing it without authorization (Buchanan 2010: 266-267; See also Sitlz 2011).

To be sure, I cannot make justice to these influential positions here or consider them in depth.
Yet, borrowing some ideas from Kant, I would like to motivate the claim that they are unable to
justify absolute territorial rights like those we now encounter. In his Metaphysics of Morals, Kant
explains that holding property over an external object, such as an apple or a parcel of land,
implies excluding all other agents from access to it. By definition, holding property over
something entails that no one else can use that thing without permission of its owner (Kant
2009: 413, 6:261). Thus, when someone claims property over a previously unowned object, that
agent restricts the freedom of others to pursue their own aims by imposing on them an
obligation to refrain from using that asset (Ripstein 2009: 96-105; Ypi 2014).

However, if we assume that human beings are equals no one can unilaterally reduce their
freedom or their sphere of agency or alter their normative situation. This is why Kant thinks that
conclusive property rights can only exist within a public system of regulations that respects the
equal standing of all those subject to it (Kant 2009: 415, 6:263). In the absence of common
regulations, individuals and groups may of course use any unowned objects which are not
under the physical control of others to pursue their aims. If they are in possession of that object,
no one can take it from them as this would require using force and coercing them (Kant 2009:

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409-410, 6: 256-258; Ripstein 2009: 94). Thus, if I have an apple an apple in my hand, no one
may legitimately take the apple from me; and if someone tried to do so I would be entitled to use
force against that person. However, when people are not in physical control of an object, their
property rights over it would only be provisional in the sense that no one would be bound to
refrain from using what they need and that people would not be morally authorized to use force
to protect what they claim as theirs (Kant 2009: 416, 6:265; Ripstein 2009: 279; Ypi 2014).

The exact implications of Kants theory of property are subject to controversy. Some authors
think that a public system of property regulations is legitimate if and only if it secures everyone
the means of subsistence either because this respects everyones fundamental right to freedom
or because, when factoring in the benefits created by the existence of private property, rational
agents would validate it as long as they are not deprived of the means they require to set and
pursue their own aims without being subject to the arbitrary will of others (Ripstein 2009:
277-284). Instead, others argue that the distribution of resources that a property scheme
sanctions must fit a more demanding standard of fairness. On this reading, Kants theory may
perfectly justify the Difference Principle put forward by Rawls. If people are equals, it is
reasonable to assume that they would only give up their right to an equal amount of property
provided an alternative pattern of distribution could improve the situation of those who end up
having less resources (Guyer 2000: 262-286). I cannot explore this interesting debate in this
essay. This is not an essay on Kants political philosophy. The key thesis I want to motivate by
invoking his ideas is that property rights restrict our freedom and that property regulations must
therefore observe certain conditions in order to be morally acceptable.

If this conclusion is plausible, then the right of states to exclude foreigners from their land and
their resources cannot be grounded on the bald fact that a group of people has settled on a

20

certain area first, has developed relevant identity attachments to it, or is currently using it to
promote the autonomy of their members or to advance justice (Ypi 2013; 2014).12 There is no
reason why any of these events should entitle a group of individuals to exclude others from
accessing previously unowned resources. If you improve something that is not already yours,
you have simply wasted your efforts (Nozick 1974: 178-182). Similarly, it is hard to see why
developing an attachment or valuably using a land which does not belong to you would create a
right to exclude others from using it (Ypi 2013). As Kant explains, before nations enter a rightful
international condition everything external that is mine or yours which states can acquire or
retain by war, are merely provisional" (Kant 2009: 487, 6:350). In the next section I will try to
clarify what normative upshots this view has for the legitimacy of an international order that
recognizes states a right to prevent foreigners from entering their territory or using the resources
located within it from the perspective of the avoidance account.

5. Two International Obligations for Human Rights and Their Priority

In the preceding sections I have argued that human rights norms may be interpreted as
constraining the activities of institutions, regimes or regulations that coerce human beings,
whether states or international structures. I have also argued that the present international order
exerts coercion over us by protecting the sovereignty of states against external intromissions
and by enforcing their right to exclude foreigners from entering their jurisdiction or taking
advantage of their resources. This creates two specific risks for the fulfillment of human rights,
namely: the risk that when governments violate the human rights of their residents, the victims
become unable to receive outside help to resist them; and the risk that human beings be locked
up under the jurisdiction of a state that violates their human rights either because it is abusive or
because it lacks the resources required for fulfilling them.

21

In this section I will maintain that in order to respect the avoidance account, the international
setup must observe two conditions that avert or mitigate the risks its existence brings about.
The first requires that it refrains from contributing to the infringement of individuals human rights
by their governments, while the second one requires that no state is deprived of the resources it
needs to fulfill the human rights of their residents. These conditions ground two general
obligations on the part of the international community: the non-contribution duty and the nondeprivation duty. I will comment on these duties in turn.

The Non-Contribution Duty

The non-contribution duty involves two more specific demands. The first is an obligation not to
recognize the sovereignty of any regime that systematically refuses to fulfill the human rights of
those in their power either by preventing outside agents from interfering with their internal
issues, or by treating its authorities as representing their peoples or as speaking in their name.

This obligation is relatively easy to justify. From the perspective of the avoidance account, when
the international community protects this kind or regimes from external intromissions, helps
them oppress internal movements seeking to advance their human rights record, or allows their
rulers to undertake agreements on behalf of their inhabitants, it contributes to the human rights
violations they perpetrate. To illustrate the point, imagine that your neighbors are kidnaped by a
criminal. This is not your fault, of course, and you may have no duty to rescue them if this
involves significant risks. But it is evident that you should not cooperate with the kidnaper in any
way, provide him with protection, or treat him as authorized to undertake agreements on behalf
of the victims. If so, you would commit a moral wrong and become partially responsible for their
situation.

22

Although this obligation is purely negative, effectively discharging it entails the adoption of
positive measures. More concretely, it involves the creation of an international apparatus that
monitors the conduct of governments, requests information from them, and gathers reliable
evidence about their human rights record. For obvious reasons, it also calls for the
marginalization of those governments that persistently neglect their responsibility to fulfill the
human rights of their residents. When the sovereignty of a government is not protected and
when their rulers are not regarded as authorized to suscribe agreements in the name of the
people, this counts as an international sanction.

Importantly, restricting the capacity of states to ask for loans, trade their products abroad, or
benefit from international agreements may often have devastating effects for the human rights
of their inhabitants and exacerbate oppression. If so, rather than marginalizing the offending
regime the international community must resort to softer measures such as diplomatic
sanctions, international criticism, or public exposition. Likewise, because some governments
may use human rights norms as an excuse to erode the autonomy of their competitors or to
promote their own geopolitical interests, any remedial actions ought to be authorized by
international organizations such as international courts, human rights treaty bodies, or some
other comparable mechanism.

As already mentioned, the non-contribution provision has been partially acknowledged by

present international law. In the traditional order installed after the Peace of Westphalia, states
enjoyed complete discretion as to how they treated those in their jurisdiction (Buchanan 2013:
122). Yet, the emergence of human rights instruments progressively rendered the sovereignty of
states conditional on the satisfaction of human rights standards. Sovereignty is not a carte

23

blanche to treat their residents as they wish any longer. It is a normative concept whose
enjoyment depends on the fulfillment of certain moral standards.

The avoidance account makes two valuable contributions in this respect. First, it provides moral
foundations for the tenet that sovereignty is not absolute and that human rights-violating
regimes are not entitled to the protection of the international order and cannot invoke the
principle of self-determination to preserve their autonomy from external intromissions. Second, it
also makes clear that the international community is not simply authorized to sanction those
governments that systematically infringe human rights norms, but has a stringent moral
obligation to do so. When it fails to act on this obligation it actively contributes to human rights
violations.

The second non-contribution obligation requires the adoption of global migratory regulations
granting immediate asylum to those individuals or groups whose human rights at risk. This
includes, of course, economic refugees. It is worth mentioning that the current international
order contains some clauses heading in this direction. According to the Geneva Convention of
Refugees, no government is permitted to return refugees to countries where their human rights
rights may be violated. This rule is known as the non-refoulement principle. However, in its
current form this regulation is insufficient. This is so not only because governments have
adopted internal mechanisms to prevent potential refugees from reaching their borders, but also
because only those who can prove that they have suffered actual persecution qualify as real
refugees under the Convention. As a result, those individuals who have not been direct victims
of abuses are often denied asylum even if their human rights are in serious danger or may be in
serious danger in the immediate future (Carens 2013: 198-202; Blake 2013). Furthermore, when
they are unable to return home after a reasonable period of time, refugees have no guarantee

24

that they will be recognized full membership in the host country. Evidently, this makes the
satisfaction of their human rights considerably precarious and deprives them of political rights.

There are, of course, a number of reasons why the reform I am suggesting may be resisted. For
instance, nations may protest that forcing them to admit anyone whose human rights are
threatened could have a negative impact on their economy, endanger their distinct political
culture and identity, or obstruct the promotion of some important collective goals, such as the
achievement of economic development or the realization of a particular conception of justice
(Miller 2007: 221). Alternatively, those states which are closer to human rights-violating regimes
may object that the burdens entailed by this reform would disproportionately fall over them.
Since refugees normally travel by land, they tend to seek asylum in neighbor countries.

From the perspective of the avoidance account, these arguments look inconclusive. An
international setup that prevents people from escaping the authority of governments that violate
their human rights would actively contribute to their subjugation. It is up to the international
community to adopt arrangements for fairly distributing the ensuing costs among its members
(Blake 2013). So, for instance, once people have been granted asylum in a safe haven, they
may be relocated in other countries according to criteria such as GNP or similar. Naturally, if the
international community shows no willingness to fairly distribute these burdens, no state can be
forced to absorbe them all. But it must at least do what it honestly considers to be its fair share
in protecting the victims.

25

The Non-Deprivation Duty

Let me now turn to the non-deprivation duty. At the most fundamental level, this is an obligation
to make sure that no state lacks the resources required to fulfill the human rights of their
residents due to the existence of international property regulations. This duty also involves two
more specific demands.

The first is an obligation to prevent outside agents from undermining the capacity of states to
deliver on human rights. This means that no state may be permitted to unduly obstruct the
capacity of other nations to fulfill human rights by exploiting, boycotting, or unduly discriminating
against them. It also means that international organizations and global governance institutions
ought to take human rights standards into account when designing their plans and policies. So,
for instance, the World Trade Organization must avoid adopting unfair trade regulations that
seriously interfere with the satisfaction of human rights on the part of developing societies.
Asymmetrical rules such as those denounced by Pogge and other cosmopolitans are an
example of this. Similarly, financial institutions such as the International Monetary Fund or the
World Bank should not make access to loans by the poorest nations conditional on the
implementation of structural adjustment programs that may leave their most vulnerable
members unprotected, or finance infrastructural projects that involve violating human rights
(Lafont 2012: 36-43).

The second non-deprivation obligation requires that the international community assists those
states which are unable to deliver on human rights because of lack of resources. This obligation
may of course be discharged by sending food, medicines, and technology to poor societies or
by transferring money to them. But as Pogge has persuasively argued it may be more
effectively honored by adopting global regulations that contribute to their development and to

26

progressively improving their capacity to fulfill the human rights of their residents (Pogge 2002:
204-210). These may include, for instance, the implementation of trade rules that grant poor
nations privileged access to markets or that allow them to protect their industrial sector through
tariff barriers; the condonation or alleviation of their external debt burden; and the provision of
cheap loans for their economic and institutional development (Author XXXX). What path to
follow will depend on a case by case analysis. However, when the international community fails
to undertake reasonable measures of this sort, the territorial claims of states become impossible
to justify from a moral point of view.

Two considerations are relevant in order to properly understand the practical implications of this
obligation. First, only those societies genuinely committed to fulfilling human rights are entitled
to external help. Unfortunately, poor societies are sometimes ruled by autocratic or demagogic
governments that have no real interest in promoting the interests of their worst-off members. In
such cases, international assistance may be make conditional on the implementation of
adequate political reforms or delivered through channels that are not under official control.
Importantly, when governments refuse to adopt the suggested measures, the only option
available to the international community may be to impose progressive sanctions on them as
those envisaged by the non-contribution duty.

Second, in the world as we now encounter it, the duty of assistance would only benefit a limited
subgroup of developing countries. More precisely, it would benefit those whose failure to deliver
on human rights is attributable to lack of resources rather than to a negligent management of
their economy or an immature political culture unless, of course, this is the result of past
international injustices such as colonialism or exploitation. Otherwise, the duty of assistance
would force some nations to subsidize the wrong decisions of other societies. This would not

27

only be unfair but would also create powerful counter-incentives for adopting suitable economic
policies in the long run.

The argument above is not meant to deny that there may be further obligations to provide direct
assistance to those individuals who live in economically prosperous settings when their
governments refuse to deliver on their human rights or discriminate against them. This may be
the case, for instance, with immigrants, ethnic and religious minorities, or poor people in some
affluent countries. As many authors have argued, we may have urgent humanitarian duties to
aid these human beings if this can be done at a reasonable cost (Nagel 2005; Miller 2007:
185-200). My sole claim is that any such duties are not grounded on human rights and that
failure to honor them should not be considered as a human rights infringement or denounced by
resorting to human rights language. Although the concept of human rights is one of the main
notions in our moral repertoire, it is not the only notion, not even the only important one.

Similarly, it is not part of my conclusion that there are no moral reasons for implementing more
demanding distribution criteria among societies. In this respect, the duty of assistance is not a
global distributive principle aimed at equalizing the income of nations or the life prospects of
individuals around the world. It is just a duty to make sure that international property regulations
do not deprive states of the resources they require for fulfilling the subsistence rights of their
inhabitants.

Yet, it may be argued that because resources are unevenly disseminated over the surface of the
Earth, international justice calls for additional measures compensating those nations located in
less advantaged geographical areas. Or it may be argued that globalization has created
patterns of interdependency and cooperation that may activate additional distributive demands

28

across borders comparable to those that apply or should ideally apply to domestic societies
(Beitz 1999: 129-154; Buchanan 2004: 213-230). The avoidance account is silent in this
respect. As already explained, it is not a view about what full international justice entails. It is
just an account of some of the necessary conditions that the present international order ought to
meet in order to be morally acceptable.

It is important to stress out that because the non-contribution duty and the non-deprivation duty
constitute necessary conditions for the legitimacy of the states system, their fulfillment takes
priority over the promotion of the national interest and the realization of domestic justice. Thus,
these international human rights obligations are not vague humanitarian commitments that
governments may decide when and to what extent to discharge by taking into account their
convenience or their own internal situation. They are rather strong requirements which amount
to duties of justice. By this I mean that in normal conditions they will trump domestic demands to
support an extensive welfare state, implement a particular distributive criterion, or promote other
valuable collective goals. Moreover, these obligations would be enforceable at least in principle,
both in the sense that those human beings whose human rights are at risk could demand their
fulfillment, and in the sense that third parties could justifiably take reasonable steps to ensure
compliance with them.

6. Is the avoidance account a sufficiently distinct view?

The contrast between the view I have suggested and the humanistic strategy should now be
clear. The avoidance account does not assume that everyone is bound to contribute to
advancing the human rights of others just because they are human beings. From this
perspective, international human rights obligations derive from a purely negative duty no to
create risks for the satisfaction of human rights, meaning risks that would not exist in its

29

absence. In the absence of a states system, or a comparable international order, these

obligations would cease to exist and nations would only bear humanitarian duties to help those
foreigners whose human rights are in peril. However, in such scenario, their right to exclude
non-nationals from accessing their territory and from interfering with their internal affairs would
be insecure as outside agents would have no obligation to refrain from encroaching it. No nation
would enjoy the benefits created by the existence of a rightful international order.

The avoidance account also contrasts with the cosmopolitan conception. It is true that both
views derive international human rights obligations from relational grounds. Yet the
independence account does not assume that whenever an agent or an institutional setup
imposes coercive regulations over us it becomes responsible for maximizing human rights
satisfaction to the extent possible. It simply assumes that any coercive order must refrain from
creating risks for the enjoyment of human rights. What exact obligations this principle triggers
depends on the nature and degree of coercion a particular institutional regime exerts over us
and the risks it brings about. In addition to this, the avoidance account also explains why nations
may have moral reasons for bringing about a states system and hence institutional devices for
the protection and promotion of human rights when these do not exist as yet. This may well
ground a natural duty of international justice.

Importantly, the avoidance account is also distinct from some views that appear to be inspired in
a similar principle or intuition. In this vein, in a recent article on the philosophy of international
law, Ronald Dworkin has argued that the main aim of international law is to mitigate two main
risks created by the existence of the traditional Westphalian system. These are the risk that
governments degrade into tyranny, and the risk that people in one state fall victims to the
invasions and pillage of other people (Dworkin 2013: 17). According to Dworkin, the duty to

30

mitigate these risks constitutes the most general structural principle and interpretive
background of international law, meaning that any controversies about its content and
normativity ought to be sorted out in light of it (Dworkin 2013: 19). In turn, in present conditions,
mitigating these risks takes facilitating an international regime that allows governments to
interfere with the sovereignty of other nations to prevent massive crimes or ameliorate their
disastrous effects, and guaranteeing that the community of nations will help states to resist
foreign pressures or invasion (Dworkin 2013: 17).

This view has evident similarities with the avoidance account. However, in Dworkins approach,
the duty to mitigate the adverse effects of the states system includes no obligation to avoid
depriving states of the resources required to deliver on human rights or to assist poor nations.
Similarly, it includes no explicit obligation to grant asylum to those whose human rights are peril.
This is so because he appears to accept the present distribution of land and territory as beyond
criticism.

Furthermore and perhaps more relevant Dworkin constructs the duty to mitigate as one that
each state has towards its own residents. The reason why governments ought to promote an
international order deploying the features he suggests is that they bear a more general
responsibility to improve their own internal legitimacy by promoting international agreements
protecting their residents against the dangers that the existence of separate territorial states
entails: the general obligation of each state to improve its own political legitimacy includes an
obligation to try to improve the overall international order in a way that would improve the
legitimacy of its own coercive government (Dworkin 2013: 17). Therefore, international human
rights obligations are not obligations that participants in the states system have towards nonnationals, but obligations that governments have towards their own residents. Perhaps this

31

means that non-nationals have no corresponding right that these obligations be duly discharged
unless states undertake an explicit legal commitment to do so. This conclusion looks awkward,
however. In fact, most theorists would protest that if there are any international obligations for
human rights, these are obligations that people have regarding the human rights of people living
abroad which are directly owed to them.

Along the same lines, Buchanan has admirably defended the thesis that in view of the severe
dangers the states system creates for the wellbeing of human beings, its existence is morally
unjustifiable unless those dangers can be significantly mitigated (Buchanan 2013:125).
Therefore, he concludes that states and their governments have an obligation to cooperate to
remedy such flaws: without the system of international legal human rights, the international
order would be unjustifiable, because the powers it confers on states would impose
unacceptable risks on human beings, both as individuals and as members of
communities (Buchanan 2013: 278).

Yet, just like Dworkin, Buchanan takes present boundaries for granted. 13 As a result, even
though he insists that states should accept an obligation to promote the satisfaction of
subsistence needs around the world and undertake actions to prevent human rights violations
by oppressive regimes, these obligations are deprived of solid foundations. Unless we regard
coercive international property rules as problematic, it is hard to justify these duties. In fact, the
risk that individuals are tyrannized by their governments or that their governments lack the
resources required to satisfy their human rights results from the existence of borders and of
centralized political authorities. This may explain why, when attempting to ground these
particular obligations, Buchanan replaces the mitigation principle by a more traditional
justificatory account which invokes the idea that All human beings ought to have the

32

opportunity to lead a minimally good or decent life and to be treated as having equal basic
status (Buchanan 2013: 285). If so, at the end of the day, his view boils down to a variant of the
humanist strategy.

7. Concluding Remarks
In this essay I have examined the nature, priority and moral foundations of international human
rights obligations. After considering two influential strategies for justifying them and explaining
their problems, I have developed an alternative view. According to this view, human rights norms
are directed against institutions or regulations that exert coercion over human beings and genet
an obligation not to create additional risks for their satisfaction. Because the current states
system coerces those subject to it by enforcing the right of states to rule over their territory and
their population, its continued existence imposes two general duties on the international
community: a duty not to contribute to bringing about human rights violations, and a duty to
make sure that no state lacks the resources required for satisfying the human rights of their
residents. Furthermore, because honoring these duties constitutes a necessary condition for the
legitimacy of the international oder, they enjoy priority over the national interest, the promotion
of collective goals, and the realization of internal justice.

Two final remarks are in order before concluding. First, the avoidance account imposes a wide
range of international obligations for human rights, including obligations to assist poor nations
and to work towards a reform of several global governance structures. However, according to
this account, if these obligations are observed the international community has no human rightsbased duty to dispatch humanitarian interventions to stop massive human rights violations,
except when they result from the activities of external agents or from features of the present

33

international setup. This does not mean, of course, that there is no oblation to act in such cases
as there may be compelling humanitarian reasons to do it. It simply means that failure to
intervene is not in a par with a human rights rights infringement and that the responsibility to
protect has alternative moral grounds such as humanitarian or justice-based ones.

Second, the priority that the avoidance account grants to international human rights obligations
is of a prima facie nature. Thus, when discharging their obligations governments may be
allowed to factor in practical considerations. In the world as we now encounter it, any candidate
that promises to prioritize the realization of human rights abroad over the promotion of the
national interest may loose an election; and any government prioritizing its international human
rights obligations over the achievement of domestic justice may face an internal legitimacy
crisis. The avoidance account works as a normative horizon that should guide a long term
reform of current international institutions, regulations and practices. However, safely
implementing those reforms may take time and requires a good doze of political prudence. This
is where the job of the moral theorist ends and the job of honest politicians starts.

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37

According to the Committee on Economic, Social and Cultural Rights, the requirement of

international cooperation implies no legal obligation on the part of State parties to assist other
nations (see General Comments 2 and 3, UN 1991). However, this is not the only body
authorized to interpret the content of the doctrine, nor is this the only interpret ion available.
See, in this respect, Salomon 2007.
2

See footnote 1, above.

If, as I will suggest, one of the functions of human rights norms is to impose obligations

beyond borders, this may be a good reason for rejecting an extremely expansive conception of
them. However, this does not necessarily imply that such view is incompatible with the
avoidance account. It all depends on our judgments about what burdens may be fairly imposed
on nations and political communities to promote the human rights of non-nationals.

38

There is a third family of conceptions of human rights available in the literature. This view,

which is known as the political account, has been defended by John Rawls (1999), Joseph Raz
(2010), Andrea Sangiovanni (2007) and Charles Beitz (2009), among others. According to these
authors, human rights are neither natural rights nor cosmopolitan ones. They are rather rights
that regulate the treatment that states may give to their residents in the context of the current
states system by justifying remedial actions on the part of outside agents when human rights
are violated. The reason I will not discuss this view is that its advocates appear to provide no
clear grounds for international human rights obligations. So, for instance, when discussing the
normative justification of human rights and their corresponding international obligations, Beitz
invokes the idea that people situated in an international original position would only accept the
existence of a states system if the system contains a precautionary apparatus protecting them
against the most egregious dangers the system involves (Beitz 2009: 126-136). However, he
offers no detailed analysis of what these risks are and of how they connect with the international
obligations he postulates (Beitz 2009: 160-196). Furthermore, when analyzing the content of
human rights norms in the final chapter of the book he seems to resort to humanistic
considerations. The same is true for Raz (Raz 2010: 334-337). If so, the political strategy would
boil down to a refined variant of the humanist strategy at least in terms of its foundations while
not of the functions it assigns to human rights norms.
5

For a detailed analysis of the nature of the human rights obligations imposed by the humanist

account, see The Author XXXX.

39

There is of course an ongoing debate as to how to define the idea of coercion. It could be

objected, for instance, that international institutions are not really coercive as participation in
them depends on the will of nations. Unfortunately, I cannot deal with this crucial issue here. I
will simply assume that an institution or set of regulations are coercive even if participation in
them is voluntary as long as opting out of them involves high costs. Although this understanding
may be challenged, most theorists addressing issues of international justice would accept it as a
reliable starting point.
7

It is convenient to point out that I do not endorse a territorial understanding of the scope of

human rights norms. In line with some recent developments in current international law, I regard
effective control over a human being or a group of human beings rather than territoriality to be
the key criterion for triggering human rights obligations. Thus, the government of the U.S. would
be under an obligation to respect, protect and fulfill the human rights of any non-nationals it
keeps detained outside of its territory. The same is true for guerrillas, armed groups or
occupation forces.
8

The principle that because individuals are free and equal, they can only be coerced according

to rules which are justifiable to them is one of the most fundamental ideas of liberal political
philosophy. The avoidance account can be regarded as a particular interpretation of what this
idea requires when it comes to justifying international coercive structures.
9

Whether a libertarian may agree with this view depends on how she understands the ideas of

harm, coercion and risk.

10

For an extremely illuminating discussion in this respect, see Buchanan 2013: 173-210.

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11

It is important to mention that the fact that the states system or any other institutional order

is illegitimate does not mean that its participants are authorized to disobey all its rules. There
may be other reasons why some of these rules ought to be obeyed. So, for instance, if the rules
are fair, this may bound agents to abide by them even if the authority issuing those commands
enjoys no legitimacy.
12

Although it is worth recognizing that under certain reading the fact that one has occupied a

certain area first may count as a reason for keeping that space once a public system of property
has been created. See Ypi 2014.
13

Recall that Buchanan suscribes a legitimacy-based account of territorial rights according to

which states hold legitimate claims over their territory and resources provided they protect the
human rights of their residents and fulfill some extra requirements, such as a non-usurpation
condition. See Buchanan 2004: 261-280.

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