State civil disobedience: A republican perspective
| Author | Danny Michelsen |
| Published date | 01 October 2018 |
| Date | 01 October 2018 |
| DOI | http://doi.org/10.1177/1755088218783232 |
| Subject Matter | Articles |
https://doi.org/10.1177/1755088218783232
Journal of International Political Theory
2018, Vol. 14(3) 331 –348
© The Author(s) 2018
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DOI: 10.1177/1755088218783232
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State civil disobedience:
A republican perspective
Danny Michelsen
University of Göttingen, Germany
Abstract
The article deals with the question of whether or under which circumstances it
is reasonable to interpret some forms of illegal state action as civil disobedience
and whether republican political theory can make a difference to the justification
of those actions. It is argued that the theory of freedom as non-domination and
the interpretation of the right to participation as the “right of rights” in a legitimate
state provide a better justificatory scheme for cases in which developing or emerging
countries break international trade laws for the purpose of protecting constitutional
rights than Rawls’ theory of civil disobedience, because it takes the problem of power
asymmetries in international relations and the status of social rights more seriously.
However, these republican standards do not offer different practical solutions for a
specific type of state disobedience, humanitarian intervention, because transferring
the standards of non-domination and the fundamental right to participation to
international relations would lead to a “maximalist” interpretation of human rights,
which would undermine the function of such interventions as an instrument of last
resort against oppressive governments.
Keywords
Civil disobedience, domination, humanitarian intervention, international law,
republicanism
Introduction
Is it possible for states to engage in “civil disobedience”? For some years now, this
apparently oxymoronic question has been discussed under the heading “International”
or “State Civil Disobedience” (SCD), referring to state action which violates
Corresponding author:
Danny Michelsen, Institute for Democracy Research, University of Göttingen, Weender Landstraße 14,
D-37073 Göttingen, Germany.
Email: danny.michelsen@demokratie-goettingen.de
783232IPT0010.1177/1755088218783232Journal of International Political TheoryMichelsen
research-article2018
Article
332 Journal of International Political Theory 14(3)
international law for the (visible) purpose of reforming it and, thereby, challenging
global injustices (Allen, 2011; Franceschet, 2015; Neubauer, 2009; 2016). The SCD
discourse is part of the broader debate about possible sources of transnational democ-
ratization and the improvement of international human rights protection. Otfried
Höffe (2007: 244), for example, claims that the idea of transnational democracy
presupposes the possibility of “world-federal disobedience” which, of course, would
have to remain “the ultima ratio,” because “as with individual states, disobedience
at the global level is prone to considerable abuse.” Therefore, Robert Goodin (2005:
236) demands that states, which act like “would-be law-makers” by breaking inter-
national law, should justify their actions publicly and prove their willingness to
accept legal sanctions. This might be the only way to find out whether these states
differ from “ordinary law-breakers.” The lawbreaker has to prove that it seeks a
“moral improvement of society” (Hjorth, 2017: 332). A good example was the
Brazilian government’s decision to issue a compulsory license for an HIV/AIDS
medication produced by the US pharmaceutical company Merck, in defiance of
intellectual property rights guaranteed by the TRIPS Agreement, in May 2007
(Neubauer, 2016: 141–170). But there is another side to the debate which concerns
analogies between civil disobedience and humanitarian intervention (Buchanan,
2004: 456–466; Hoag, 2007; Miller, 2015). Of course, this subject is much more
controversial than the aforementioned cases, and there are many reasons why trans-
ferring the justificatory scheme of civil disobedience to the level of international
relations might be especially problematic in the case of military operations.
Envisioning state lawbreaking as a kind of civil disobedience might be misleading,
mainly because it not only risks “reproducing a conventional view of the nation-state
as the predominant and indeed central institutional player on the global scene,”
which may be empirically inaccurate, but also because it depicts states as “conscien-
tious” individuals, which is “normatively dubious” (Scheuerman, 2016: 240).
Against these and other well-founded reservations, I will argue that justifying interna-
tional lawbreaking in terms of SCD might be at least a useful test case for a normative
perspective on questions concerning global justice and human rights protection—just as
the justification of “domestic” civil disobedience is “a crucial test case for any theory of
the moral basis of democracy” (Rawls, 1971: 319). The normative perspective which I
will defend in this article is the ideal of freedom as non-domination and the basic right of
active participation in republican political theory.1 So far, the SCD discourse has been
strongly influenced by Rawls’ concept of civil disobedience, which implies some quite
restrictive criteria for the justification of SCD. To challenge these restrictions and to
identify fairer justification criteria for the international level, I will draw heavily on
insights from the work of Hannah Arendt and Philip Pettit in the first part of the article.
In the second part, I will examine whether these criteria can reasonably be applied to
international relations. Humanitarian intervention as a special case will be the subject of
the third and last section. I will show that the republican justification of SCD can make
a practical-political difference only in those cases in which a state breaks international
law to protect the enforcement of constitutional rights, because the ideal of non-domina-
tion and of the basic right to participation are too demanding for a normative extension
of the sovereignty-restricting function of human rights in a pluralist world.
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