Abstract and Keywords
This introductory chapter outlines the empirical context of the debate over reparations for historic international injustice, with particular reference to colonialism and the slave trade. It characterizes the argument of the book as a specific type of non-ideal theory, and explains the book's commitment to a particular kind of practicality, whereby its arguments can be employed by real world political actors. It outlines an approach to international justice labelled ‘international libertarianism’, advocated by writers including John Rawls, David Miller, Michael Walzer, and Thomas Nagel, which is analogous to domestic libertarianism in terms of its commitment to respect for sovereignty, self-ownership, and the minimal state. This is distinguished from alternative accounts of international justice such as cosmopolitanism and realism. The book's focus on rectificatory duties, rather than rights, is explained, and the terminological relation between terms such as restitution and compensation, and nation and state, is explicated.
1.1 RECTIFYING INTERNATIONAL INJUSTICE — THE REAL WORLD CONTEXT
The United Nations World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance was held between 31 August and 8 September 2001 in Durban, South Africa. The Conference was widely portrayed in the West as having largely been a failure, with delegates unable to reach substantive agreement on two highly contentious issues that dominated the reporting of the proceedings of the Conference. The first was familiar, involving relations between Israel and Palestine. The second concerned a question that had only recently gained a significant amount of serious international coverage, that of whether Western countries should apologize and/or pay reparations for unjust actions performed in the colonial era, particularly (though not exclusively) in relation to their involvement in the slave trade. There was little consensus at the Conference, even among the African nations who sought to press claims upon their Western counterparts. Olusegun Obasanjo, President of Nigeria, argued in favour of an apology but against reparations, for while he maintained that, ‘the legacies of several centuries of racial discrimination and dehumanisation through slavery, slave trade and colonisation have the deep and fundamental consequences of poverty … and marginalisation of Africans from the rest of the world,’ he nonetheless said that, ‘monetary compensation would hurt the dignity of Africans.’1 Abdoulaye Wade, President of Senegal, ridiculed the reparations claims on the basis that he was the descendant of slave‐owning African royals: ‘If one can claim reparations for slavery, the slaves of my ancestors or their descendants can also claim money from me because slavery has been practised by all people in the world.’2 But more representative of the bulk of the African delegates were the views expressed by Umberto Brown, International Secretary of the United States‐based Black Radical Congress: ‘The U.S. doesn't even want to take the first step and acknowledge slavery as a crime against humanity or acknowledge the continued suffering of Africans and African descendants. Instead, they say (p. 2 ) they “regret” that the slave trade happened. Forget regret. We want them to take responsibility.’3
Brown is unlikely to have been mollified by the outcome of the discussions, which, at the insistence of the European representatives, and following a walkout by the United States, steered clear of any explicit reference to reparations, instead simply condemning and expressing regret for colonial practices. In one particularly striking instance, the United Kingdom successfully resisted pressure to label historic slavery as a crime against humanity, on the basis that it had not actually been illegal at the time. In the eyes of a number of observers, the Conference's treatment of the reparations issue had been at best a waste of time, at worst had diverted attention from other more pressing concerns (‘The haggling between the Europeans and Africans over the slave trade and colonialism marginalised all debate on the huge problems of racism within Africa's borders today’)4 or had been positively harmful (The Times commented, in a remarkably hostile leader, that the ‘enterprise has become a repellent throwback to the anti‐American politics of resentment and hate that riddled the U.N. in the 1960s and 1970s’).5 The debate provoked a great deal of journalistic discussion worldwide, but the issues raised were largely put to one side following the terrorist attacks of 11 September 2001.
The aim of this book is to develop a set of principles that can be used to assess duties and obligations of compensation and restitution in an international context. The debate in Durban raised a wide range of questions — including the extent to which present day generations can be held responsible or accountable for the actions of their forebears, the nature of the enduring effects of historic wrongs, and the significance of the existence or absence of laws governing international interaction — that will be addressed in what follows. Such issues have only received significant attention in recent years. Many closely related issues have, of course, been raised in the past. The rights and wrongs of the colonial period have been extensively debated. Some African Americans in the United States have long claimed that they are owed compensation as a result of the enslavement of their ancestors, prompting a debate that has hovered on the edge of public consciousness since the radicalization of the civil rights movement in the 1960s. In the aftermath of the Second World War there were restitution claims that made explicitly moral arguments, based upon the injustice of, for example, Nazi Germany's actions, in a way which differed significantly from the reparations customarily imposed upon the losers of military conflicts by the victors. But it is only relatively recently that the issue of compensation for colonial practices has been raised in an international context. More typically, such arguments have been made within particular states, directed against the governments of those states by domestic minority groups. Thus, of the six chapters of his book The (p. 3 ) Guilt of Nations that Elazar Barkan devotes to ‘Colonialism and its aftermath’, only one (‘Restitution for slavery: opportunity or fantasy?’) considers (in part) international cases, where it is claimed that governments, institutions, groups, or individuals of one state have obligations to, or valid claims against, such parties in other states.6 There is far more philosophical literature available that considers compensation for historic wrongs from a domestic rather than an international perspective. This is not surprising, given that political philosophy has traditionally tended to consider questions of justice within a single, bounded state: John Rawls's A Theory of Justice sets the tone for this, as well as for so much else, in contemporary analytical theory.7 As is increasingly commonly pointed out, however, interest in questions of international justice has grown in recent years, with inquiry that crosses over between the disciplines of political theory and international relations — two fields which have often paid scant regard to one another. Charles Beitz is generally credited with the revival of interest in questions of international justice within contemporary liberal political philosophy with his 1979 work Political Theory and International Relations, and by the time Rawls published his own contribution to the debate with his 1999 The Law of Peoples (a book based on his 1993 Oxford Amnesty Lecture of the same name) there was lively and far‐reaching debate among political theorists on questions of international distributive justice.8
In The Guilt of Nations, Barkan couples a growing trend in domestic politics towards the consideration of compensatory and restitutive questions with a ‘novel phenomenon’: ‘the demand that nations act morally and acknowledge their own historical injustices.’9 He traces this initially to the end of the Second World War, and claims that there has been a quickening of this trend since the end of the Cold War, with its accompanying easing of international tension. It is perhaps not surprising that such questions tend to receive most attention when states believe that their security is not under threat, and so are of the opinion that they have more scope for ethical action. Given how rapidly the international security environment was transformed after 11 September 2001, mere days after the Durban summit ended, it may be the case that Durban, despite its failure, might represent the high‐water mark of the reparations movement. This thought remains plausible, for example, when one considers the lack of political enthusiasm apparent when the issue was raised once more during the bicentenary of the abolition of the colonial slave trade in the United Kingdom in 2007. Although some other bodies, notably the Church of England, went some way towards endorsing the possibility that historic actions might give rise to contemporary obligations, the British government maintained the earlier position of expressing both sorrow and regret, while also seeking to differentiate the past from the present in terms of what is owed (p. 4 ) to others. The different terminology employed by the leaders of the relevant institutions is telling. Asked in a radio interview whether simply apologizing for historic actions was ‘too easy’ to be a morally appropriate response, Rowan Williams, the Archbishop of Canterbury, answered as follows:
WILLIAMS: Yes, nobody I think has found an easy and morally clear way of figuring this. Are apologies too easy? Well they may well be, but they still have to be made I think, certainly an acknowledgement of the truth. It's not about lashing yourself with guilt over this, it's about saying ‘well you know we belong to an institution which is in part shaped by this history, and … we are here where we are and who we are partly because of terrible things that our forbears did — face it, get used to it, and you know make that history your history’. Then the question is, where are we now? And while it sounds simple to say, all right so we should … pass on the reparation that was received in 1831 or whenever, exactly to whom? Exactly where does it go? And exactly how does it differ from the various ways in which we try to, to interact now with the effects of that in terms of aid and development and so forth?
INTERVIEWER: But implicit in what you say is, is perhaps a need to make amends in some form?
ARCHBISHOP: I think so, yes. If you are living off that kind of historic legacy, then you have a responsibility I think — you have a responsibility.10
By contrast, Prime Minister Tony Blair made the following statement:
I believe the bicentenary offers us a chance not just to say how profoundly shameful the slave trade was — how we condemn its existence utterly and praise those who fought for its abolition — but also to express our deep sorrow that it could ever have happened and rejoice at the better times we live in today.11
Blair's words here reiterate the position put forward by the British delegation at Durban. ‘Rejoicing in the better times we live in today’ implies that wrongdoing is a matter of the historical record, rather than a contemporary concern. It suggests both that the slave trade itself no longer exists — a highly questionable assumption12 — and that the historic slave trade does not give rise to present day obligations. Nonetheless, although African delegates were largely disappointed by the outcome of the 2001 sessions, a number of the agreed final resolutions point the way forward for the movement, if political will can be found amongst the states who signed up to the Declaration.13 Article 98 of the Resolutions stresses the importance of teaching about the facts of history, ‘with a view to achieving a comprehensive and objective cognizance of the tragedies of the past’. Article 99 acknowledges and regrets the ‘massive human suffering’ caused by, amongst other things, slavery and colonialism. Article 100 notes the initiative of some states to apologize and pay reparations ‘for grave and massive violations committed.’ Article 101 expressly endorses and appreciates the practice of apologizing for ancient wrongs. Perhaps most (p. 5 ) significantly, Article 102 notes: ‘We are aware of the moral obligation on the part of all concerned States and call upon these States to take appropriate and effective measures to halt and reverse the lasting consequences of those practices.’ What it means to acquire compensatory and restitutive obligations in an international context, how they are obtained, and how they may be discharged are precisely the questions which this book seeks to answer.
This book is an exercise in political theory. Most of the examples given are theoretical, and are not drawn from (though may correspond to) real world history. The aim of the book is to elucidate the moral principles that lie behind all consideration of the rectification of historic injustice. As such, the principles discussed are by no means relevant exclusively to the consideration of the aftermath of colonialism. Throughout the book, I use the term ‘the rectificatory project’ to describe the general aim of seeking to ensure that one's moral duties arising from historic injustice are fulfilled, whatever the nature of the historic injustice in question. The Durban Conference is, however, an appropriate place to begin for there are a number of reasons why the issue of relations between former colonial powers and their colonies is particularly significant to the principles under consideration. Colonialism raises a range of difficult philosophical issues. A wide variety of different forms of interaction may be considered under the headings of ‘colonialism’ and ‘imperialism’. Although, as Ronald Horvath notes, ‘it seems generally, if not universally, agreed that colonialism is a form of domination — the control by individuals or groups over the territory and/or behavior of other individuals or groups’,14 such a definition can be said to apply to a variety of actions, ranging from the violent conquest and suppression of a foreign people and the forcible appropriation of their resources and possessions, through various forms of direct or indirect political control, to the seemingly peaceful, and even consensual, exploitation of less powerful or wealthy non‐nationals. Many would argue, of course, that various forms of colonialism persist in the modern world, but we can also speak meaningfully of a particular form of historical colonialism, based on forms of international interaction such as military invasion, subjugation, enslavement, and appropriation of resources, which most observers would (and do) readily condemn as both illegal and immoral if they were to occur in the present day. The actions in question often occurred at least several generations ago; were typically not illegal by the laws of the day, nor even necessarily considered to be morally wrong at the time; and frequently involved nations with very little prior interaction, which have often subsequently worked closely together, whether by mutual choice or not. All these characteristics of historical colonialism are significant when we come to assess what contemporary states owe one another as a result of past injustice in the present day. Although not all historic injustice which stands in need of rectification in the present day was colonial in nature, this (p. 6 ) book suggests that it is in their historic relations with their former colonies that many Western states find their most pressing rectificatory duties, which have been largely unrecognized and unfulfilled. In the following chapters, I argue that modern day individuals and groups face strong moral obligations to enquire into their national history, and to consider carefully the provenance of the resources and benefits to which they have access. I write this book as a British national, working within a British University. The evidence of Great Britain's colonial past is impossible to miss here in Oxford, most strikingly in the magnificent Codrington Library of All Souls College, built with profits from West Indian slave plantations. It is not hard to think of a myriad of ways in which I personally have benefited from forms of historical international interaction which are deeply controversial in the present day. The book does not represent an investigation of the kind I advocate into my own or anyone else's national past. Rather, it seeks to explicate the principles of rectificatory justice which such an investigation should employ, whoever is carrying out the investigation in question.
1.2 THEORY AND PRACTICE
The debate over the rectification of historic wrongdoing between nations is one which involves political actors, including elected representatives, interest groups, and the media, who seek to have an effect upon policy outcomes in the real world. This book aims to assist this debate. Its argument therefore aspires to a particular kind of practicality. It is becoming increasingly common to criticize a good deal of contemporary analytical political theory as being impractical, concerned as it is with what John Rawls described as ‘ideal theory’.15 In A Theory of Justice, for example, Rawls made it clear that, for the most part, he was considering justice within a well‐ordered society, where ‘everyone is presumed to act justly and to do his part in upholding just institutions’.16 The real world evidently is not like this. Rawls accepted that questions of how we are to deal with non‐compliance with justice are important in real world politics: ‘Obviously the problems of partial compliance theory are the pressing and urgent matters. These are the things that we are faced with in everyday life’ — and he referred explicitly to questions of compensatory justice in this context.17 The issue of whether and how we should seek to rectify historic injustice is indeed a pressing political concern. We may believe that doing so will involve substantial transfers of resources between different states, or may involve other actions of great significance for particular individuals. Insofar (p. 7 ) as some of the beneficiaries of rectificatory action are likely to be some of the world's poorest people, it is not fanciful to suggest that whether or not we seek to rectify historic international injustice is a matter of life and death.
In dealing with the rectification of injustice, then, this is an exercise in non‐ideal theory, in two separate senses. It does not seek to give an ideal‐style account of how the world should be, and it need not necessarily be interpreted as giving an account of how the world should ideally proceed from its present non‐ideal state. The first sense of non‐ideal theory is the one most commonly found in contemporary writing. The purpose of much modern day analytical political theory is to give an account of what some element of an ideal society — and, by extension, an ideal world — would look like. For example, some writers seek to outline the principles of political and distributive justice which would obtain within a just society. Political theorists disagree over the extent to which such accounts should take account of empirical facts about the world: for example, by allowing for limitations of human psychology, or purported facts about human nature, to feature as component elements of theories of justice.18 They may also disagree over whether the aim of ideal theory is to describe a kind of society which is at some level politically feasible, such as Rawls's claim that his theory is designed to describe a ‘realistic utopia’,19 or to construct an admittedly infeasible but perfectly just alternative to our present society, in order to highlight our own shortcomings and, perhaps, suggest ideal standards to which we should aspire. Such disagreements may be framed in terms of ‘practicality’ and ‘impracticality’, in terms of whether a given ideal theory is, or should be, likely to be achievable in the real world. But there is a clear sense in which all those engaged in such enterprises are constructing theories of the ideal, and as such are bracketed together as theorists of ‘ideal theory’, in that, like Rawls, they describe just societies, where individuals fulfil their duties to each other. However, as George Sher notes, there is an alternative approach:
… in addition to treating existing societies as occasions for reflection about the ideal, or as sources of materials from which to fashion it, philosophers can also treat their lapses from the ideal as independent occasions for normative reflection — as distinct new sources of normative problems. When philosophers take this approach, they engage in what Rawls calls non‐ideal theory or partial compliance theory, and what others call the theory of the second best.20
What does it mean to give a ‘theory of the second best’? One way in which non‐ideal theory can operate is by examining the appropriate response to departures from the ideal. This differentiates ideal theory from non‐ideal theory in terms of its subject matter. Thinking about the rectification of injustice is clearly an exercise in non‐ideal theory in this sense. So, for example, theories of (p. 8 ) punishment examine the requirements of justice in response to certain forms of wrongdoing. The subject matter is non‐ideal in the sense that we would usually imagine that there would be no wrongdoing in an ideal society, but given that we live in a real world context where wrongdoing does exist, we nonetheless need to work out what justice requires of us. Similarly, a great deal of contemporary writing on international ethics is concerned with the non‐compliance of other agents. Suppose that we believe that, in an ideal world, everyone would have enough to eat, as the rich would collectively fulfil a moral duty to transfer sufficient of their extra resources to those in desperate need —perhaps through, for example, voluntary contributions to some kind of global fund, or by paying a mandatory transnational income tax. In an ideal world, then, an individual's moral duty to the world's poor may well be satisfied by contributing her fair share to the global fund, or simply by paying her taxes. But what are her moral duties in a non‐ideal world, where many of the world's rich do not do their fair share in helping those in need?21 In both cases, non‐ideal theory seeks to tell us what justice requires of us when we do not start from an ideal starting point. Non‐ideal theory in this sense could be described as a ‘theory of the second best’, in that a situation where injustice is rectified is second best to a situation where no injustice occurs and so there is no need for rectification; but this is a rather different understanding of the idea of a ‘theory of the second best’ to that found in the work of some economists and political theorists, who argue that better outcomes can sometimes be achieved by aiming for some manageable target rather than for some infeasible or improbable ideal.22
This book looks at a question of non‐ideal theory in its subject matter — it is concerned with how to respond to existing, real world departures from the ideal caused by international injustice. It is thus practical in the sense that it addresses a contemporary political debate. But it also seeks to attain a further kind of practicality, which I call ‘double practicality’, in that it aims to develop arguments which can realistically be employed by the protagonists in this real world debate. The key point here concerns the foundational premises which these protagonists accept. Chapter 2 argues that insofar as the rectification of injustice affects the distribution of resources, the content of one's theory of rectificatory justice will reflect one's theory of distributive justice. The less of a role that history plays in one's account of distributive justice, the less one will believe that the rectification of historic injustice requires a redistribution of resources in the present day. The book largely takes for granted a broad orientation on international distributive justice, which is labelled ‘international libertarianism’. This reflects the idea that the principles which a range of political theorists believe govern international interaction are strikingly similar to the principles which libertarian writers, such as Robert Nozick, believe govern (p. 9 ) interaction between individuals at a domestic level.23 As Chapter 3 argues, international libertarianism is supported by a significant number of political philosophers, many of whom advocate far more redistributive principles of distributive justice within the domestic sphere — including John Rawls himself. The international libertarian vision of a just world order is one governed by certain principles of justice which regulate interaction between states. These ‘principles of just international interaction’ are guided by two primary ideas: first, that certain forms of interaction between states, typified by unprovoked acts of aggression, are unjustifiable; second, that national self‐determination should be respected unless the intervention of other states is required to prevent certain kinds of injustice. International libertarians hold that boundaries between different political communities have ethical significance. They are therefore generally resistant to claims that justice requires the redistribution of resources across state boundaries, other than when (at most) such redistribution is needed in order to raise those in other states up to some minimal level of well‐being. As such, there are striking analogies with domestic liber‐tarianism in terms of ideas such as respect for sovereignty, self‐ownership, and the minimal state.
In terms of respect for sovereignty, the guiding principle of both accounts is that of non‐intervention without proper cause. It is anticipated that, in the normal course of events, both individuals and political communities should be free to do as they please, providing that their actions do not infringe on the rights of others. Non‐intervention, or non‐interference as it is normally called in the domestic case, is the expected norm. Deviance from non‐intervention requires special justification. In an international context, this becomes support for self‐determination. The concept of self‐ownership is a familiar one within a domestic libertarian context, and refers to the claim that an individual owns herself, where this is taken to refer to her body and to her talents. The concept of self‐ownership also appears in an international context. Here, it refers to the right of a nation to the exclusive use of the natural resources within its territory. It may also be understood to refer to a relationship between the people of the nation and the territory on which they live; this may be taken as far as actually defining the nation in such a way as to make reference to the territory in question. Finally, both domestic and international libertarians express support for the minimal state, expressing scepticism as to the extent of legitimate state intervention. This is expressed within a domestic context in terms of opposition to taxing and spending for reasons other than providing basic communal services and ensuring individuals' security. The most important element of this is evidently the status given to private property. This concern is mirrored in terms of international libertarians' resistance to the open‐ended international redistribution of resources, even if relatively (p. 10 ) demanding duties to assist non‐nationals are endorsed. Rawls, for example, is explicit that the duties of assistance placed upon peoples require action only in order to achieve a particular objective; namely, bringing burdened societies into the Society of well‐ordered Peoples.24 As such, the duty of assistance ‘is a principle of transition’,25 with a ‘target and a cutoff point’.26 Moves to afford further taxation powers to international bodies are therefore resisted.
International libertarianism is described in further detail in Chapter 3. It can be distinguished from two alternative approaches to questions of international justice, prescriptive realism, and cosmopolitanism, in that it seeks to delineate dedicated principles of international justice. Both realists and cosmopolitans deny that there is a distinct realm of international justice, for very different reasons. Prescriptive realism holds that states are justified in doing whatever is necessary to further their own self‐interest. Realists therefore deny that international interaction either is or should be guided by considerations of justice. On the realist account, therefore, the suggestion that modern day states should seek to rectify the lasting effects of historic injustice makes little sense, since there is no such thing as historic international injustice. Cosmopolitanism denies that national boundaries have ethical significance. Thus, for cosmopolitans, the same principles of justice which apply domestically should apply internationally. So some cosmopolitans give highly redistributive accounts of international justice, advocating, for example, some version of global egalitarianism. Others, who argue for libertarian theories of entitlement domestically, argue for respecting property rights and oppose extensive redistribution both domestically and internationally. The significance of historic injustice is likely to be very different for these two types of cosmopolitans‐ as later chapters note, libertarians typically have very good reason to pay careful attention to the historical record ‐ as but what they have in common is that they deny that historic international justice requires dedicated scrutiny as apart from historic injustice in general, since they deny that there is anything which differentiates domestic from international distributive justice.
Prescriptive realism is discussed in Chapter 3. The position is often caricatured as holding that ethical principles simply do not apply to international relations, though it is perhaps more accurate to speak of the belief that the international sphere is a realm of necessity, where governments either have no choice, either practically or morally, but to pursue the self‐interest of their own citizens. Reasons are given as to why the strong variant of this thesis — that states have no choice at all in how they deal with others, and have no leeway at all for moral action — should be rejected. Such a strong position is, in any case, now rarely asserted as an account of international justice (as opposed to a description of the Realpolitik of international relations) either by (p. 11 ) theorists or by real world political actors. Nowadays, almost all serious writers on the subject accept the existence of at least some minimal ethical constraints upon international actions. Furthermore, when expressions of exclusively self‐regarding national interest realism are made in an overt manner in real world contexts, an obvious contemporary example being the initial form of the US Government's opposition to the Kyoto Protocol on Climate Change, they generally provoke a great deal of criticism, and are often subsequently rephrased in a less contentious manner. As such, even if we believe that, descriptively, self‐interest guides the actions of political actors, the content of international political debate makes extensive reference to other‐regarding moral principles.27 If one accepts the existence of such principles, one needs at least an argument as to what should take place when the principles in question are contravened. This opens the door to the international rectificatory project. The questions at stake are, first, which historic actions count as acts of injustice, and, second, how we should respond in the present day to such acknowledged injustices. These are the issues which this book addresses.
The argument of this book, then, concerns the moral duties of contemporary political communities — it is not concerned with the question of whether fulfilling rectificatory duties is in the self‐interest of these communities (aside, that is, from the sense of self‐interest, which consists of their acting as moral agents). This is not to say, of course, that fulfilling the said obligations would not be in the interests of the communities involved. There are two plausible arguments from national self‐interest that might motivate realists to adopt the rectificatory project. The first of these is straightforward: it might be the case that fulfilling rectificatory duties would be in a state's long‐term interest in terms of its dealings with the state or states to whom its obligations were owed. This might particularly be the case if one believed either that one's national rectificatory duties were relatively slight, and amounted to little more than symbolic gestures such as making apologies, or if one thought that political pressure would mean that, over the long term, rectification of some kind would have to be made by many different states. There are other variations on this theme; for example, one might think that one's own nation's rectificatory obligations were relatively slight compared to one's rivals, and that fulfilling the said obligations would compel one's rivals to follow suit, thus gaining one's own nation a competitive advantage. In such a situation of assumed inevitability, one might gain a great deal of long‐term goodwill by being the first mover. The second argument is perhaps more interesting, and stems from the national self‐identity of the state with the rectificatory duties. It is now common for political philosophers to stress the benefits that communal membership and a sense of cultural identity can afford to individuals. Nationalists stress the role of one source of cultural identity in particular — the (p. 12 ) nation — and believe that one's national identity is, or can be, important to the quality of life of the individuals who make up the nation. Nations are characteristically understood by their members as being historically continuous entities; a nation is at least partly constituted by its members' beliefs relating to its past (regardless of whether these beliefs are accurate, or reflect a mythical history).28 It is quite possible that in some situations this past may prevent a nation's members from embracing their national identity, for example, if they feel shame or guilt at the nation's historical actions.29 One can imagine that this was the case in South Africa following apartheid, and the moves taken towards rectification and reconciliation there were at least partly oriented around the desire to allow South Africans to adopt a positive conception of South African nationality.30 It seems not overly fanciful to think that knowledge of many Western countries' colonial past prevents a number of their citizens from embracing their national membership in a way they would like. A contemporary British example might be the poet Benjamin Zephaniah's recent refusal to accept an OBE — the initials stand for ‘Order of the British Empire’ — on the grounds that the award was associated with Britain's unjust colonial past. In an article for the Guardian newspaper, Zephaniah condemned the historic actions and lasting effects of the British Empire and the British establishment's refusal to embrace the rectificatory project:
I get angry when I hear that word ‘empire’; it reminds me of slavery, it reminds me of thousands of years of brutality, it reminds me of how my foremothers were raped and my forefathers brutalised. It is because of this concept of empire that my British education led me to believe that the history of black people started with slavery and that we were born slaves, and should therefore be grateful that we were given freedom by our caring white masters. … It is the institution of the monarchy that I loathe so very much, the monarchy that still refuses to apologise for sanctioning slavery … Why don't they just give me some of those great African works of art that were taken in the name of the empire and let me return them to their rightful place?31
In such cases, adoption of the rectificatory project might be seen to be in the nation's own self‐interest, in that even if it costs money, it will allow for a higher degree of communal participation and unity.32 It might even be possible to build an argument on explicitly realist premises which holds that, in such circumstances, Western governments have a moral duty to fulfil their rectificatory obligations: a duty they hold to their own nationals, rather than to foreign nationals.33 My argument, however, will not address this question. The principles I examine are those which emerge as a result of unjust treatment of non‐nationals. As such, they are duties owed primarily not to one's fellow citizens but to others.
(p. 13 ) The realist challenge, therefore, is largely put to one side. This leaves international libertarianism and cosmopolitanism as rival accounts of international justice.34 Why adopt the international libertarian perspective when thinking about historic injustice? The straightforward reason is because of the popularity of international libertarianism. Chapter 3 lists some of the important political theorists who fall within the international libertarian camp, including such figures as John Rawls, Thomas Nagel, Michael Walzer, and David Miller along with many others. It would be quite wrong, of course, to suggest that international libertarianism is anything but deeply contentious at a theoretical level. A range of writers, including Charles Beitz, Thomas Pogge, Onora O'Neill, Darrel Moellendorf, and Simon Caney, again, along with many others, have challenged international libertarianism by putting forward opposing models of cosmopolitanism. Within the academy, therefore, opinion is deeply divided. When we look to real world beliefs about international justice, however, it is hard to resist the conclusion that there is much more backing for international libertarianism than for cosmopolitanism. As Cécile Fabre notes, ‘Contrary to [cosmopolitanism], most people believe that borders are morally significant to establishing whether we owe anything to others, and that they are significant because national self‐development matters.’35 This vision also finds real world form in the provisions of international law, which explicitly uphold the principle of state sovereignty, subject to respect for the self‐determination of other states and universally applicable human rights.36 It is hard to maintain that there is a great deal of real world support for redistributive cosmopolitanism, which strongly suggests that to the extent that political theorists use controversial cosmopolitan premises, their work on rectificatory justice is likely to be of little use to those engaged in political argument in the real world.37 Adopting the international libertarian perspective when considering the rectification of historic international injustice, therefore, allows for double practicality — it puts forward arguments which can realistically be used and endorsed by political actors engaged in real world policy disputes.
All this is straightforward for those who accept that international libertarianism is the right account of international distributive justice. With such a foundational argument in place, the argument concerning rectification would be non‐ideal in the first sense outlined above — the ideal response to the non‐ideal circumstances in which we find ourselves in the real world as a result of historic injustice. Those who accept international libertarianism tend to share the same foundational premises as those engaged in policy debates, and so their arguments on such questions are doubly practical. Although this book certainly looks at the foundational premises of international libertarianism, it does not go as far as endorsing them. My argument has a (p. 14 ) conditional character — if one accepts the international libertarian account of distributive justice, then one should consider the three morally relevant forms of potential connection with past wrongdoing which the book outlines. One can believe that such a project has both philosophical and political merit even if one is not an international libertarian. The real world policy debate over the rectification of international injustice is often confused, resting on conceptual mistakes and theoretical misunderstandings. Key ideas discussed in later chapters — including, for example, the role of counterfactual reasoning in calculating modern day benefit and harm (see Chapter 4), the justifiability of the inheritance of entitlements within an international libertarian framework (Chapter 5), and the significance of the claim that a failure to rectify injustice can itself constitute injustice (Chapter 6) — have been misunderstood by both political actors and academic theorists. This book seeks to redress this situation, and one might therefore hope that doing so would improve the quality of public debate, as well as clarifying the positions of those theorists who do accept international libertarian foundational premises, most of whom have paid little or no attention to the consequences of historic injustice for their accounts.38 The aim is to enable such thinkers to reach a state of what Rawls calls ‘narrow reflective equilibrium’, whereby they aver a scheme of moral principles which is in keeping with their considered judgements about justice.39 This is one reason for doing non‐ideal theory in the second sense, whereby one does not argue for, or even necessarily accept, the foundational premises with which one is operating, and so is not committed to giving an account of how the world should ideally proceed from its present non‐ideal state.
There is also another, perhaps more contentious reason for working within the international libertarian framework. This relates to the strategies pursued by those cosmopolitans who seek to effect a real world redistribution of resources. This book argues that the rectification of historic injustice is likely to involve a substantial redistribution of resources from rich to poor. Given the apparent lack of public support for global egalitarianism, for example, it may well be that the best political strategy for those who support extensive redistribution is not to seek to challenge the deeply held foundational principles of real world political actors, but to maintain that these very principles, if properly understood, call for a substantial redistribution of resources, even if this is not as complete a redistribution as egalitarians might wish for in an ideal world. Such an approach is similar to that which, on some accounts, has been adopted by Thomas Pogge. In recent work, Pogge has developed an institutional account of international justice which stresses the way in which the structure of international law and society actively harm the world's poor.40 He claims that citizens of developed states are complicit (p. 15 ) in this injustice, since those who live in poverty in less developed states ‘are being harmed through a badly slanted global order in whose continuous shaping and coercive imposition we are materially involved’.41 As such, ‘severe poverty is an ongoing harm we inflict upon the global poor’.42 A key part of this argument is the claim that involvement in the perpetuation of the global economic order, through the everyday activities of those living in the developed world, infringes negative duties not to harm the world's poor. Pogge argues that ‘ordinary moral thinking is committed to a hierarchy of moral reasons’, which gives priority to negative duties not to wrong others, above even positive duties to protect one's next of kin from wrongdoing (and clearly above positive duties to protect unrelated foreigners from wrongdoing).43 The account, therefore, is one which does not utilize controversial premises of, for example, egalitarianism derived from Kantian premises based on the moral equality of persons, but which bases duties to the world's poor on the nature of contemporary international interaction. Allen Buchanan has suggested that Pogge's argument has this form as it appears (to Pogge) to be the ‘best argumentative strategy’ to secure redistribution to those in need.44 Buchanan surmises that rather than maintaining that we only have obligations to those who are or can be net contributors with us in a cooperative scheme, Pogge's point is rather that even if we do have some obligations to persons with whom we are not interacting, ‘the fact of interaction grounds important, and relatively uncontroversial obligations of justice’.45 Simon Caney speaks, in this context, of the appeal of ‘Pogge's overall strategy of trying to build a case for global justice that is realistic and that seeks to work, so far as is possible, within the parameters of the modern world.’46 The claim is that there are good strategic reasons to focus on the effects of international interaction, even if one in fact believes that we owe duties to all the world's poor regardless of the empirically contingent nature of contemporary international relations.47
A similar justification could be given for focusing on historic international injustice, defined in terms of violations of the principles of just international interaction. Pogge's definition of harm is contentious, resting upon the claims that, first, the existing world order causes harm to the world's poor, and second, that members of the developed world are implicated in this harm in such a way that they are failing to fulfil their negative duties to refrain from harming the world's poor.48 He admits himself that many will find it hard to credit:
That world poverty is an ongoing harm we inflict seems completely incredible to most citizens of the affluent countries. We call it tragic that the basic human rights of so many remain unfulfilled, and are willing to admit that we should (p. 16 ) do more to help. But it is unthinkable to us that we are actively responsible for this catastrophe. If we were, then we, civilized and sophisticated denizens of the developed countries, would be guilty of the largest crime against humanity ever committed, the death toll of which exceeds, every week, that of the recent tsunami and, every three years, that of World War II, the concentration camps and gulags included. What could be more preposterous?49
The account of harm given in this book is much less controversial — it also rests upon negative duties to forebear from harming others, but draws upon paradigm cases of unjust international interaction, such as materially motivated aggression against other political communities, which are now almost universally accepted as being wrong.50 This understanding of harm is straightforward, and defined in terms of active, usually deliberate, and typically violent wrongful damage to others' interests. An argument of duties to others grounded in this way is able to draw upon the powerful psychological force of arguments relating to rectificatory justice.51 People do feel the force of rectificatory claims keenly. This is significant both at the level of determining what duties we hold in relation to others, and at the level of motivating us to fulfil these duties. To claim that individuals possess unfulfilled rectificatory duties to others is seriously to challenge their integrity as moral agents. It is therefore not surprising that the rectificatory project, while compelling to some, has also met with a good deal of spirited opposition in a real world context. Some people react with indignation and outrage to the suggestion that they possess rectificatory duties in the present which stem, in some cases, from the actions of their ancestors. The problematic implication here is that they are being held morally responsible for the actions of others — actions which were performed in many cases prior to their birth, and for which they simply cannot, on any account of moral agency, be held responsible. For understandable reasons, people react strongly when they believe that they are being blamed for something which is not their fault. The character of the (often conceptually confused) real world debate over apologies for historic wrongdoing has probably not helped matters in this regard. Insofar as it is commonly believed that the rectificatory project rests upon the absurd claim that present day individuals are in any sense morally responsible for the perpetration of historic injustice, the project has seemed outrageous to some, and ridiculous to others.
Nothing in this book rests upon such a claim. Instead, Chapters 4, 5, and 6 put forward three ways in which current generations within particular political communities may be linked, in a morally relevant way, to past wrongdoing, which may be broadly described in terms of benefit, entitlement, and responsibility: (p. 17 )
1. Benefit: when one community is benefiting, and another is disadvantaged, as a result of the automatic effects of an act of historic injustice.
2. Entitlement: when one community has possession of property to which another community is morally entitled.
3. Responsibility: when one community is responsible for an ongoing injustice in relation to another community, understood in terms of an ongoing failure to fulfil rectificatory duties over time.
My claim is that, taken together, these morally relevant forms of connection mean that those living in the developed world possess significant rectificatory duties to many of those in less developed countries. The extent of these duties will depend, to a certain extent, on one's precise account of historic interaction — an account which this book does not seek to provide — but it does seem clear that if all three forms of potential connection are admitted, there will be significant overlap between the redistribution required by both cosmopolitan and international libertarian accounts. Properly understood, the motivating force of arguments based in rectificatory justice can be marshalled in support of international redistribution without holding present day individuals morally responsible for the actions of their ancestors.
There are therefore two complementary motives for cosmopolitans to argue for redistribution in relation to the rectification of historic international injustice. The first rests on the fact that such an argument is able to engage with the foundational premises of real world political actors, who typically reject cosmopolitanism. The second concerns the motivational force of ideas of rectificatory justice. It is one thing to hold that one's theory of justice or morality requires redistribution across national boundaries. International libertarians typically accept the existence of duties of assistance to those in desperate need. Yet, as many writers have observed, it is obvious that such duties of assistance are far from being fulfilled. The World Bank has estimated that, in 2001, over a billion people were below the minimal ‘one dollar a day’ international poverty line.52 It is not simply a question of making the intellectual case in support of helping those in need. Opinion polls consistently show majorities in developed states as being — in theory — in favour of increasing aid to and encouraging development in the world's least developed countries.53 Yet in real world political contexts, with multiple calls upon governmental funds, such views are only rarely translated into meaningful policy outcomes. Insofar as pursuing the international rectificatory project leads, in practice, to the fulfilment of duties of assistance, it can be seen as being complementary in nature to other approaches with similar goals, such as Pogge's emphasis on negative duties not to cause harm, and Peter Singer's account of positive duties to assist those in desperate need.
(p. 18 ) Such an approach is not without complications. There is undoubtedly an issue of intellectual honesty at stake — should political theorists who believe in egalitarian cosmopolitanism not try to convince others of the truth of their foundational premises, rather than merely pointing out that international libertarians ought to acknowledge the existence of rectificatory duties if they are to achieve a state of narrow reflective equilibrium? Some will worry that such a strategy fails to meet the need for principles of justice to be publicly justifiable.54 It should be noted, however, that cosmopolitans need not disguise their own views, pretending to be international libertarians in public but secretly remaining cosmopolitans in private. (In this spirit, it is perhaps appropriate to acknowledge that my own ideal theory perspective on international distributive justice is both cosmopolitan and egalitarian, and so not international libertarian.)55 Instead, the argument can be presented as one of seeking to reach a point of what Cass Sunstein calls ‘incompletely theorized agreement’ in the public sphere, whereby a given course of action can be agreed upon by individuals who hold different foundational premises.56 Such a claim is somewhat complicated, of course, by the fact that there will inevitably be differences between the courses of action proposed by redistributive cosmopolitans, on the one hand, and by international libertarians pursuing the rectificatory project on the other. Claims relating to rectification do depend on the particular character of historic interaction. To claim that international libertarians should accept that the rectification of historic injustice requires substantial international redistribution is not, of course, to say that it requires the same degree of redistribution as that advocated by, say, egalitarian cosmopolitans, unless one's view is that historic injustice has been so prevalent as to call the legitimacy of contemporary holdings entirely into question.57 So Nigel Dower, writing of the argument that nations should ‘make recompense’ for exploitation, argues:
I think it is important not to base the moral argument for aid too firmly on it. To do so would be to incur the consequence of accepting that the very poor in a country which we were not exploiting would not be entitled to our concern.58
Onora O'Neill makes a related point in Faces of Hunger:
… if we cannot tell how far the predicaments of the present were produced by ancient wrongs, nor do much to tell which of those now alive have been so harmed, and which of them have benefited from those past violations, claims for compensation will be indeterminate and hard to allocate and so provide no certain remedy for the neediest.59
One need not accept all elements of these arguments. Chapter 3 notes that international libertarians can accept that it is unjust to exploit those in other countries. Chapter 4 addresses questions relating to the uncertainties of how (p. 19 ) to assess harm and benefit in connection with distant wrongs. But both Dower and O'Neill share a reasonable concern that there will be some very poor persons who will not be helped by a rectification of historic wrongdoing who would be aided if redistributive cosmopolitan principles of justice were realized. Should cosmopolitans be concerned about this?
It must be acknowledged that, ultimately, international libertarianism and redistributive cosmopolitanism are likely to have different practical implications. One approach allows for the justifiability of substantial and persistent inequalities between states, when these inequalities arise as a result of the legitimate self‐determination of different political communities. The other typically calls for redistribution to limit or counter such inequalities. They do represent two very different takes on international distributive justice. But they need not be characterized as having widely divergent policy implications in the short term in relation to those in desperate need. International libertarianism, as has been noted, can accept the existence of duties of assistance to the very poor, and can even accept that features of the international economic and political order infringe the negative rights of the impoverished. So, making arguments in favour of aid to those in need which are based in the rectificatory project need not mean ignoring other possible grounds of duties to non‐nationals. The facts of global poverty mean that there is a particular urgency to debates over global justice. For many of those involved in international politics, the question is one of which arguments are best able to marshal immediate support for those in desperate need. This book argues that such persons have good reason to think carefully about framing at least some of their arguments in relation to the rectification of historic international injustice, even if, in ideal theory terms, they reject international libertarianism and instead favour exclusively forward‐looking principles of distributive justice.
This, then, is a second‐form of non‐ideal theory, which can readily be described as a ‘theory of the second best’. Rather than seeking, ambitiously, to challenge the basic foundational premises of real world political actors, it seeks to bring about desirable change by engaging with existing beliefs about justice, and pointing out the unrealized progressive implications of these existing beliefs, properly understood. This is, in one sense, a conservative perspective on the efficacy of political theory.60 One certainly need not maintain that all political theory need have this character. But in a world which is characterized both by widespread, life‐ending injustice and by a theoretical chasm between the principles of justice advocated by many philosophers, on the one hand, and by most real world political actors, on the other, it surely has a place. Needs must when the devil drives.
One final point relating to the connection between theory and practice. This book is concerned with questions of rectificatory justice. In focusing on (p. 20 ) the ‘rectificatory project’, it argues that those living in the present days should fulfil any rectificatory duties which they possess to those who are still, in one of the three senses examined, suffering as a result of historic injustice. In asking who owes what to whom in a contemporary context, its primary focus is on the bearers of rectificatory duties. At a theoretical level, the focus on duties rather than rights is merely a matter of approach. In technical terms, the book employs a Hohfeldian model of claim rights in relation to rectificatory justice, whereby to say that an agent has a duty to rectify X is necessarily also to say that another agent has a right that X be rectified. Both duty holder and rights bearer must be identified if one is to claim that rectificatory justice requires action in the present. The emphasis on duty bearers, however, is potentially of practical significance in political terms. Some writers have expressed concern at the effects which a focus on backward‐looking accounts of rights to rectification may have on the victims of injustice. Onora O'Neill, for example, finds the emphasis placed on the entitlements of the victim within rights‐based accounts of compensatory justice problematic. Two potentially unfortunate consequences may arise. The first is that there may well be some individuals or groups who have suffered as a result of historic wrongdoing, but to whom no extant contemporary party possesses rectificatory duties. In such cases, there is a danger of positing a claim to compensation (and thus creating a potentially harmful sense of grievance) on the basis of injury suffered without specifying an agent with a correlative duty of rectification. Clearly, it is especially the case in the international arena that duties of compensation must be specifically fixed on particular agents with some morally relevant relation to the victim, since there is currently no obvious fallback institution, such as an international state, that has undertaken or could feasibly undertake to provide such compensation. The second, and related, potential consequence of a victim‐centred approach is a common element of contemporary critiques of ‘compensation culture’. O'Neill writes:
When we ask what our rights are we no doubt assume that we and others are agents, but our first question is to ask what ought to be done for us, what we ought to receive from others. When we ask what our obligations are we begin by asking what we ought to do … [The rights‐centred approach] invites a conception of oneself and others above all as victims, rather than as doers or citizens; it distracts allocation away from capacity for acting … Only the weak and powerless have reason to make the perspective of recipience and rights their primary concern.61
Political campaigns for the rectification of ancient wrongdoing are often criticized in this manner. It has been suggested that groups who continue to seek compensation for wrongs perpetrated against their ancestors or the restitution of property stolen in the distant past are harming themselves, (p. 21 ) regardless of the justice of their claims, by perpetuating a ‘victim mentality’, which adversely affects the future prospects of their own community. Such sentiments have frequently been expressed in relation to the debate in the United States over reparations to African Americans for slavery, from those within as well as those outside the black community. Thus, for example, John McWhorter, Associate Professor of Linguistics at Berkeley, criticizes Randall Robinson, author of The Debt: What America Owes to Blacks thus:62
What kind of leading black thinker is one whose message for the black youth of America is … the measure of our strength as a group is how articulately we can call for charity? Its popularity notwithstanding, it is hard for me to accept that The Debt is really representative of my brethren's thinking on the subject of their place in America. Surely black people in all walks of life are increasingly realizing that pity has never gotten a race anywhere …63
This position, at least, is overstated, and evidently neglects the distinction between justice and charity. But nonetheless, it does seem possible that a viable argument of this kind could be made in certain contexts. Should we ignore the historical record, so as not to engender a ‘victim mentality’ in those who are due, as matter of justice, rectificatory action in the present day? The key question here concerns what we might call the location of the political initiative. What was seen in Durban was (largely) an approach to rectification based upon the rights claims of victims being resisted by the agents against whom the claims were being made. It might be the case that waging a long‐term campaign of this kind is, in some circumstances, detrimental to the victim, in terms of their self‐respect and their ability to develop, free from ‘living in the past’. In such cases, it may well be sensible in practical terms to seek to move on from the past, and either put it to one side altogether, or pursue political initiatives based on the reconciliation of divided communities, rather than the attainment of justice. This, essentially, is a consequentialist argument, which claims that the costs of pursuing what one is owed as a matter of justice outweigh the benefits one would gain if one did in fact receive one's due. It does seem, however, that this is less likely to be the case if the political moves towards the rectification of injustice are initiated by the duty bearers, rather than by the rights holders. A stricter consequentialist test must be passed if the duty‐centred approach, whereby agents willingly fulfil their rectificatory duties, is to be dismissed as counterproductive for the reason that it harmfully treats rights holders as victims. This is a rather different approach, and while it is not impossible that the costs of such an initiative might outweigh the benefits from the rights holders' perspective, it does seem less likely in practice. If we had good reasons to believe that the rectificatory project would, in fact, be harmful to the victims of historic injustice then of course it would seem (p. 22 ) sensible to hold that the pursuit of justice might be counterproductive. But this book puts such issues to one side — its focus is on what is owed by present day parties and to whom as a matter of justice. Clearly, the question of quite how these duties are to be best fulfilled is likely to be a difficult policy matter, which will principally need to be concerned with the best interests of the rights holders in question. But one must first give an account of what these duties are.
Finally, by way of introduction, it is necessary to address two terminological issues that often cause confusion within the context of the consideration of historic injustice.
1. Compensation and restitution
‘Restitution’ is a term which is used in different ways by different authors.64 It can be taken to refer to the whole process of seeking to rectify historic injustice, and is often used in this way in both scholarly and popular discussion of righting past wrongs. Thus, for example, Richard Vernon uses the term to describe all elements of attempts to right historic wrongs, ‘ranging from the literal return of the object that was taken (in whole or in part), through financial compensation based on estimates (somehow reached) of the value of the object, to apologies (or apology‐like acts under various names) with or without accompanying compensation’.65 By contrast, Onora O'Neill defines restitution much more narrowly, as only one possible part of rectificatory justice, and as conceptually distinct from compensation: restitution ‘is a matter of restoring matters to those that obtained before wrong was done’; it corresponds specifically to the ruptured moral relationship between offender and victim, and unlike compensation, it ‘cannot be vicarious’.66 By way of laying out the legal context of the term, Peter Birks explains that, in common usage, the term has two meanings: ‘There can be restitution of a thing or person to an earlier condition and restitution of a thing to a person.’67 Confusion arises as the first sense of restitution here corresponds to the idea of compensation, whereby counterbalancing benefits are provided to make up for a particular loss. The second sense is conceptually distinct, and Birks identifies the idea lying at the heart of this second sense by suggesting that ‘restitution is the response which consists in causing one person to give back something to another’.68 These two senses of restitution are confusing, and have led to a degree of muddled thinking on the subject of the rectification of historic injustice, despite having been quite clearly separated in the past by writers such as Jeremy Waldron.69 Therefore, I follow Birks in suggesting that (p. 23 ) we should keep the two terms quite separate. When I use the term ‘restitution’, I refer specifically to the return of misappropriated property. Compensation forms the subject of Chapter 4, and restitution is the subject of Chapter 5. I use the term ‘rectification’ to refer to restitution in the first, general sense, and, as noted, the term ‘the rectificatory project’ to describe the general aim of seeking to ensure that one's moral duties arising from historic injustice are fulfilled.
2. Nations and states
The second terminological issue relates to the differences between groups and entities such as nations, states, nation‐states, and peoples. There is no agreed definition for any of these terms, and writers use them in different ways in different contexts.70 The problem manifests itself even with the phrase ‘international law’, which, on some interpretations, refers to the law of states — not, in fact, of nations.71 Insofar as nations are defined as particular kinds of selfidentifying cultural groups, it is quite possible to have states that contain more than one nation, or nations split between two or more states.72 In fact, philosophical debate over the rectification of injustice has often focused on precisely such cases, in relation, for example, to indigenous peoples. This book, however, is explicitly concerned with ‘international’ justice in the sense of justice between, not within, modern day self‐governing communities. A question of historical rectification only falls within the remit of the book if the people of one modern day state have duties to persons who are members of other states. I refer to the latter class of persons as ‘non‐nationals’. In what follows, I use both the term ‘state’ and the term ‘nation’. This is necessary, since modern day political agency is typically exercised through the state, and so political questions of duties to others arise primarily at a state level.73 I generally use the term ‘nation’ when I am discussing the historical interaction of peoples. Here I refer (in David Miller's terms) to ‘a community of people with the aspiration to be politically self‐determining.’74 Insofar as such communities were self‐determining they were capable of acting unjustly to others, and regardless of their level of self‐determination they could be treated unjustly and harmed themselves. The precise relation between historic nations and modern day states is often complicated: the most straightforward cases concern nation‐states, where there is a close match between a historical cultural group and the population of a modern state, and this is generally the easiest example to bear in mind when conceptualizing problems of historical rectification. Inevitably, this is something of an abstraction, and might be thought to overlook the more complicated nature of many real world situations. However, the nature of my argument avoids a number of these problems. Chapters 4 and 5 work within a particular methodological assumption, whereby the populations of (p. 24 ) current states are considered as innocent third parties in relation to historic injustice. The questions that are posed are (a) Have these modern day populations benefited, and non‐nationals suffered, as a result of historic injustice? and (b) Are these populations in possession of property which might be said to belong to non‐nationals? Such arguments make no assumptions about the relation of these modern day states to the nations originally responsible for the commission of injustice. The methodological constraint is removed in Chapter 6, which explicitly considers the extent of continuity between historic nations and their modern day counterparts.
(1.) Chris McGreal, ‘Secret talks to heal UN race split’, Observer 2 September 2001.
(2.) Tim Butcher, ‘Prejudice shows over slavery and reparations’, Daily Telegraph 3 September 2001. The comment was, presumably, intended as a reductio ad absurdum of the reparations case, rather than an acknowledgement of the (not necessarily unreasonable) argument that various African royal families may possess significant rectificatory duties.
(3.) Rachel Neumann, ‘Despite U.S. pullout, debate over reparations continues’, Village Voice 5 September 2001.
(4.) Chris McGreal, ‘UN race meeting ends in acrimony’, Guardian 8 September 2001.
(5.) ‘Debacle in Durban’, The Times 29 August 2001.
(6.) Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historic Injustices (New York: Norton, 2000).The other five chapters consider indigenous groups (in general), Native Americans, Australian Aborigines, Maoris, and native Hawaiians. Much of the material on rectification for slavery applies to African American claims from the US Government.
(9.) Barkan, The Guilt of Nations, p. xvi.
(11.) Cited at http://news.bbc.co.uk/1/hi/uk_politics/6185176.stm/(accessed 13/02/2008).
(15.) For example, see Colin Farrelly, ‘Justice in ideal theory: a refutation’ Political Studies 55 (2007), 844–64; but for powerful responses, see Zofia Stemplowska, ‘What's ideal about ideal theory?’ Social Theory and Practice 34 (2008), 319–40 and Adam Swift, ‘The value of philosophy in nonideal circumstances’ Social Theory and Practice 34 (2008), 363–87.
(19.) Rawls, The Law of Peoples, pp. 6–7.
(23.) The term ‘international libertarianism’ is potentially confusing. As later discussion stresses repeatedly, it does not describe the perspective on international distributive justice of writers who are libertarians at a domestic level. In changing the foundational unit of libertarianism from individual to collective, the theory is completely transformed.
(24.) Rawls, The Law of Peoples, p. 111.
(25.) Rawls, The Law of Peoples, p. 118. [Rawls's emphasis]
(26.) Rawls, The Law of Peoples, p. 119.
(27.) My argument here follows that of Mervyn Frost on ‘settled norms’, which looks not so much at what political actors actually do but at the justification they feel necessary to give to their actions. See Frost, Ethics in International Relations: A Constitutive Theory (Cambridge: Cambridge University Press, 1996), pp. 105–6.
(28.) So Ernest Gellner famously writes that, ‘Nationalism is not simply the awakening of nations to self‐consciousness: it often invents nations where they do not exist’, Gellner, Thoughts and Change (London: Weidenfeld & Nicolson, 1964), p. 168. For discussion, see Arash Abizadeh ‘Historical truth, national myths, and liberal democracy: on the coherence of liberal nationalism’, The Journal of Political Philosophy 12 (2004), 291–313.
(30.) The new South African constitution itself makes explicit reference to historic injustice, the preamble beginning: ‘We, the people of South Africa, recognise the injustices of our past; honour those who suffered for justice and freedom in our land; respect those who have worked to build and develop our country; and believe that South Africa belongs to all who live in it, united in our diversity.’ See Eduard Fagan, ‘The constitutional entrenchment of memory’, in Sarah Nuttall (p. 26 ) and Carli Coetzee (eds.), Negotiating the Past: The Making of Memory in South Africa (Cape Town: Oxford University Press, 1998), 249–62.
(31.) See Benjamin Zephaniah, ‘Me? I thought, OBE me? Up yours, I thought’, The Guardian 27 November 2003.
(32.) In On Nationality (Oxford: Clarendon Press, 1995), David Miller points to a crisis in British identity, holds this to be a bad thing, and suggests a three point plan, involving: (a) an explicit debate about the character of national identity, (b) a constitutional settlement, including a written constitution, and (c) the introduction of civic education (pp. 78–82). My suggestion is that the adoption of the rectificatory project would also be a necessary step in reversing such a perceived decline in national identity.
(33.) The converse would also be true, in that on realist terms the government of a country whose sense of national identity would be lessened by paying compensation or effecting restitution would seemingly face a moral obligation not to seek to rectify past injustice.
(34.) As Cohen and Sabel have recently argued — and as Chapter 3 acknowledges —this is not to say that liberal political theorists need fall squarely into one camp or another, as it is quite possible to adopt one of a range of intermediate positions, holding that one has limited distributive duties to non‐nationals. My claim is that such writers, along with more straightforward international libertarians, also need a distinctive account of international rectificatory justice. Joshua Cohen and Charles Sabel, ‘Extra rempublicam nulla justitia?’, Philosophy and Public Affairs 34 (2006), 147–75 at p. 149.
(35.) Cécile Fabre, Justice In a Changing World (Cambridge: Polity, 2007), p. 103. David Miller argues in similar fashion in favour of his backward‐looking national responsibility model, noting that whatever the theoretical appeal of present‐ or future‐oriented accounts of international justice, this approach ‘does not square with common opinion on the question of international distribution’, Miller, ‘Holding nations responsible’, Ethics 114 (2004), 240–68 at p. 241n.
(37.) For some, this may be sufficient reason to rule out redistributive cosmopolitanism at the level of justification, if one holds that one should take account of everyday beliefs when formulating principles of justice. David Miller has expressed support for a version of this position: ‘I maintain that empirical evidence should play a significant role in justifying a normative theory of justice, or to put it another way, that such a theory is to be tested, in part, by its correspondence with our evidence concerning everyday beliefs about justice … The aim is to achieve an equilibrium whereby the theory of justice appears no longer as an external imposition conjured up by a philosopher, but as a clearer and more systematic statement of the principles that people already hold’ (David Miller, Principles of Social Justice (Cambridge, MA: Harvard University Press, 1999), p. 51). Miller does accept that this is a controversial view, since ‘it may be (p. 27 ) argued that to see justice in this way is to abandon its most critical function: our theory cannot judge an entire society, including its beliefs, to be radically unjust’ (p. 279n [Miller's emphasis]). Evidently, it is just such a critical claim which is made by radical cosmopolitans who believe that everyday contemporary beliefs about justice are profoundly mistaken. See, for example, Peter Unger, Living High and Letting Die: Our Illusion of Innocence (New York: Oxford University Press, 1996). In any case, I do not follow Miller's approach here.
(38.) So Simon Caney claims that Rawls's failure to address this issue in The Law of Peoples creates a ‘lacuna’ in his account of international justice: ‘It is hard to deny that the current distribution of wealth and power has been affected by previous injustice. This immediately raises the question of whether and to what extent compensation is owed to some because they have been treated unjustly in the past. Now my point here is not that Rawls must adopt principles of rectificatory justice. It is rather that, given the incontestable fact of previous exploitation, any satisfactory theory of international justice must address the question of whether there are duties of compensation (or reconciliation or even apology) … What one cannot do, I think, is stay silent on the matter and this is what Rawls does’ (Simon Caney, ‘Survey article: cosmopolitanism and the Law of Peoples’, The Journal of Political Philosophy 10 (2002), 95–123 at p. 119). David Miller, however, does address the issue, in particular in his National Responsibility and Global Justice (Oxford: Oxford University Press, 2007).
(39.) John Rawls, ‘The independence of moral theory’, Proceedings and Addresses of the American Philosophical Association, 48 (1974–5), 5–22 at pp. 7–8. It is quite possible, of course, that a proper understanding of the implications of their foundational premises may lead such theorists to revise these premises themselves, and so revise their understanding of — or reject — international libertarianism itself. What this book does not do is to challenge these foundational principles by subjecting them to thorough‐going scrutiny, through an analysis of their strength compared to the foundational premises averred by others, such as cosmopolitans. This is why the approach is best described as one of seeking to achieve narrow rather than wide reflective equilibrium. See Rawls, ‘The independence of moral theory ’, p. 8; Norman Daniels, Justice and Justification: Reflective Equilibrium in Theory and Practice (Cambridge: Cambridge University Press, 1996), pp. 1–10. It should perhaps be underlined that Rawls's project is explicitly concerned with wide — not narrow — reflective equilibrium.
(41.) Pogge, p. 133.
(43.) Pogge, p. 132.
(45.) Buchanan, p. 97 [my emphasis].
(46.) Simon Caney, ‘Global poverty and human rights: the case for positive duties’, in Thomas Pogge (ed.), Freedom from Poverty as a Basic Right (Oxford: Oxford University Press, 2007), 275–302 at p. 287, 44n.
(47.) In a recent interview, Pogge explicitly accepts that his emphasis on negative duties, at least, is strategic in nature: ‘Yes, this emphasis is in part pragmatic. I do believe that most severe suffering in this world would be avoided if the rich countries merely fulfilled their duty not to harm. I also find, especially in the Anglophone countries, a great reluctance to take positive duties seriously. And this is most of my audience, an extremely powerful constituency in this world! I say to them: “I know what you expect from a lecture or essay about global poverty: an appeal to be more generous, to give more aid. But you will not get this from me. I am leaving positive duties aside and rest my case entirely on negative duties… ” Many have criticized me for rejecting positive duties. Such criticisms are simply mistaken. By taking positive duties off the table in conversation with some particular audience, I am not denying such duties in any way. I am simply leaving them aside because I expect that no agreement can be reached. Of course I believe in positive duties. But I keep them out of much of my work to make it very clear that I need not appeal to them. I want to reach people Peter Singer cannot reach; and those people will tune out as soon as I talk about positive duties’, Sandrine Berges, ‘Interview with Professor Thomas Pogge’, Éthique et économique/Ethics and Economics, 5 (2007). Peter Singer famously put forward an account of positive duties to those in desperate need in Singer, ‘Famine, affluence and morality’, Philosophy and Public Affairs 1 (1972), 229–43.
(48.) See Alan Patten, ‘Should we stop thinking about poverty in terms of helping the poor?’, Ethics & International Affairs 19 (2005), 19–27; Mathias Risse, ‘How does the global order harm the poor?’, Philosophy and Public Affairs 33 (2005), 349–76; Ser‐Min Shei, ‘World poverty and moral responsibility’ in Andreas Follesdal and Thomas Pogge (eds.), Real World Justice: Grounds, Principles, Human Rights, and Social Institutions (Dordecht: Springer, 2005), 139–56.
(49.) Pogge, ‘Symposium: World Poverty and Human Rights’, pp. 1–2. See also Pogge, World Poverty and Human Rights, p. 145, which describes this phenomenon in terms of ‘thoughtlessness’.
(52.) Shaohua Chen and Martin Ravallion, ‘How have the world's poorest fared since the early 1980s?’, The World Bank Research Observer 19 (2004), 141–69 at p. 141. Some critics contend that this actually understates the extent of global poverty: see, for example, Thomas Pogge and Sanjay G. Reddy, ‘Unknown: the (p. 29 ) extent, distribution and trend of global income poverty’ (2006) — available at http://ssrn.com/abstract=936772/.
(54.) For discussion with reference to Pogge, see Caney, ‘Global poverty and human rights: the case for positive duties’, pp. 300–1.
(57.) This is, strikingly, a conclusion entertained at a domestic level by Robert Nozick in Anarchy State, and Utopia (New York: Basic Books, 1974), p. 231. Nozick's position is discussed in Chapter 2. It is equally striking that Nozick takes it for granted that rectification takes place within, rather than potentially between, societies.
(60.) For an articulation of this objection, see Goodin, ‘Political ideals and political practice’, p. 40.
(68.) Birks, An Introduction to the Law of Restitution, p. 11. Birks in fact goes on to lay out a more precise definition of restitution in a legal context, so that: ‘Restitution is the response which consists in causing one person to give up to another an enrichment received at his expense or its value in money’ (p. 13). However, the conceptual distinction from compensation remains.
(70.) Rawls's preference for ‘peoples’ is somewhat idiosyncratic; for a discussion, see Simon Caney, ‘Review article: international distributive justice’, Political Studies 49 (2001), 974–97 at pp. 983–4.
(71.) Terry Nardin notes that so close have the notional links between nation and state become, ‘that the English language now scarcely distinguishes them in many contexts. It allows us to speak of the “nation‐state”, “international relations” and the “United Nations,” even though it is almost always states rather than nations which are being talked about’, Nardin, Law, Morality and the Relations of States (Princeton: Princeton University Press, 1983), p. 43. See also Miller, On Nationality, pp. 18–19.
(73.) This is in itself a simplification, as it overlooks perfectly valid arguments concerning the rectificatory obligations of, for example, multinational corporations. I leave such questions to one side, and focus exclusively on actions which can be taken by governments.
(74.) Miller, On Nationality, p. 19. Miller's full definition of nationality has five elements, and describes ‘a community (1) constituted by shared belief and mutual commitment, (2) extended in history, (3) active in character, (4) connected to a particular territory, and (5) marked off from other communities by its distinct public culture’, On Nationality, p. 27.