Luban, David. "Just War and Human Rights". Philosophy and Public Affairs, Vol.9, No.2 (1980): 160-181.

Luban, David. "Just War and Human Rights". Philosophy and Public Affairs, Vol.9, No.2 (1980): 160-181.

• Although international law does not include moralistic categories such as just or unjust wars, it does define wars as being legal or illegal, concepts which the author treats as equivalent for the sake of this paper, as theories of just war played significantly into the creation of the criteria for legal wars and thus represent contemporary thought (160-161).
• International law designates any war to be illegal barring self-defense in response to an armed attack or any aggressive actions not approved by the UN Security Council, meaning that unjust war is defined by its aggressive character and just war is defined by its defensive and reactionary character (161-163).
• The definition under international law, however, does not provide a moral basis for sovereignty or its characterization of illegal and legal warfare. The issue of just war is phrased in terms of states owing responsibilities to other states not to violate sovereignty and independence, with individuals or morality left undiscussed (164).
• Assuming that states are the actors with responsibility for warfare, then they are characterized by sovereignty. However, this sovereignty is a form of legitimacy not possessed by all de facto states, meaning that unjust war is really the use of aggressive force against a legitimate state (164).
• There is another possibility that the duty to not engage in unjust war is a duty owed to the international community rather than other states, because of the humanitarian devastation intrinsic in war. However, the author rejects this theory because since humanitarian damage results from all conflict, the distinction cannot exist between just and unjust war within that worldview (164-165).
• Using the definition provided by the United Nations -- although conspicuously ignoring the other justification for the use of armed force if approved by the UN Security Council -- when a state recognizes another as legitimate it agrees to respect non-interference in that other nation's domestic affairs, regardless of how disgustingly oppressive and dictatorial the other nation may be. The author believes that this legalistic view of just war is therefore immoral and does not sufficiently capture legitimacy of government as expressed in political philosophy (166).
• The legalistic definition is inconsistent because it does not examine why legitimate states have the right to sovereignty. Presumably states are sovereign because it protects their people from foreign infringement on the right to a legitimate state (166). Yet this should also mean that states are only legitimate and deserving of sovereignty is they are respect certain human rights, which legalism does not account for (167).
• According to contract theory, people naturally have some rights, which can then be transferred on political communities -- such as nation-states -- which individuals form voluntarily (167).
• Two forms of contractual political community exist, however, the free association or 'horizontal' contract, and the 'vertical' contract one is forced to accept as the relationship between individuals and states (167). The rights of the state can only be established through the vertical contract, made to outline the agreed relationship between non-state groups and the nascent state (168).
• Using the view of contract theory expressed by the author above, a state may only exercise rights in the international sphere when it is legitimate, which can only occur when it is based on consent of the ruled. Therefore a state which does not have popular consent for its rule should not morally enjoy the right of protection from armed force (169).
• The nation -- or groups of people -- upon which the state is based, however, still should enjoy the right to express themselves through the creation of a legitimate state. A distinction between the nation and the state -- represented by the government in power -- is made to justify intervention, but not annexation (169).
• Since the issue of defining what makes a state legitimate is hotly contested and mostly unclear, Dr. Luban instead begins to identify cases in which the illegitimacy of a government is clear, beginning with a poor and naive interpretation of a leftist uprising to Nicaragua to demonstrate a 'clear' example of a scenario when a government is obviously illegitimate (170-171).
• "States [...] are not to be loved, and seldom to be trusted. They are, by and large, composed of men and women enamored of the exercise of power, men and women whose interests are consequently at least slightly at variance with those of the rest of us. When we talk of the rights of a state, we are talking of rights -- "privileges" is a more accurate word -- which those men and women possess over and above the general rights of man; and this is why they demand a special justification" (173).
• The author only believes in negative rights, and therefore the exercise of rights requires interaction with other humans because they by definition place restraints on possible interactions with other humans. Human rights are a subset of these rights which exist by virtue of being human and are owed by men to all other men (174).
• Violations of these natural human rights are severe and are a just cause for action in defense of these rights. On the individual level then, a just war is one fought against of human rights violations and an unjust war is any conflict started without the goal of defending human rights (175).
• Any evaluation of a war started to defend human rights must include the element of proportionality into its calculus, as all wars create some violations of human rights. Only when a war will cause less severe violations than peace does intervention constitute a just war (176).
• The author believes that their new conditions for a just war, laid out explicitly on page 175, provides a more morally acceptable vision of world order. A case demonstrative of this is where one nation is starving, but another has imposed an embargo for historical reasons. Under international law an invasion to secure food would be illegal, but the author applauds the fact that such action would be just under their framework (177).
• The author modifies this statement slightly, noting that since a liberal interpretation of this argument could lead to economic wars and imperialism, such resource warfare would only be allowable in times of catastrophic economic collapse leading to the endangerment of fundaments human rights to life (178).
• Unlike the previous definition under international law, humanitarian intervention would be acceptable and just under the rubric created by Dr. Luban, just as long as it was in accordance with protecting and promoting human rights (179).
• The author argues with many of Mill's points regarding the cases in which foreign intervention can be allowed, however, Dr. Luban disagrees that rebellions should be allowed to succeed or fail on their own. Dr. Luban disagrees with Mill that not rebelling implies tacit consent, meaning it is a moral duty to assist in rebellions even if they are not militarily successful, not stand by and wait for the rebels to win (179-180).