Can a State Have a Moral Right to Exist?

So when we say “state x has a right to exist,” we need to clarify what a state is. A state is a sovereign administrative apparatus that governs a given territory. Do states per se have permanent, unqualified rights over those territories? In order to believe that, you have to believe that the right of Czechoslovakia, Yugoslavia, the USSR, South Yemen, Pakistan, and others to exist was violated by the change in sovereignty over territory. Few would maintain this as a matter of deep moral principle. 

A state is also a sovereign administrative apparatus with a given name. Do states per se have a permanent, unqualified right to exist with a specific name? In order to believe that, you have to believe that the rights of “Rhodesia” or “Burma” to exist were violated when Zimbabwe and Myanmar were established. Few would maintain this as a matter of deep moral principle. 

So what do we mean by the thing that supposedly has a right to exist when we say “state x has a right to exist”? The most interesting of these cases is probably South Africa, because of its continuity in name, territory, and population but radical change in its constitutional order. I will take it as the most plausible claim that the apartheid Republic of South Africa ceased to exist with the creation of the postapartheid Republic of South Africa. This view would have some support from the history of philosophy. Aristotle defined a polity as a combination of matter (the population, territory) and form (the constitution). For Aristotle, if a city-state changed its constitution fundamentally, it changed its form and thus its very essence, the thing that it is. Some modern democratic theorists would posit something similar based on the idea of constituent power—that is, a state derives its existence and legitimacy from the sovereign will of the people. The state has no separate existence from the decision of the people to give it a particular constitution. It makes perfect sense to say that “France” existed as two separate states during the Bourbon Monarchy and the First Republic, without any change (yet) of territory or population. 

So let us consider the following revised definition of a state: a state is a sovereign administrative apparatus over a particular territory defined by a particular constitution. In other words, what a particular state is, to a large extent, is given by its regime. This raises the question of whether a state changes its existence (the old state ending, the new one coming into being) through a change in its essence (its constitution). This is a little more complex than some of the preceding examples made it seem. On the one hand are great revolutions. It seems plausible—undeniable even—that the revolutions in China, Cuba, and Iran ended the previous states and created new ones without the territory, population, or (vernacular) name changing. Arguably, too, the state known as the French Fourth Republic ceased to exist with the freedom of Algeria and the move from a parliamentary to semi-presidential system. The various waves of democratic transitions from fascist or communist regimes arguably ended the preceding states and created new ones. 

But with many other more minor constitutional changes we will be less inclined to say that a state ceased to exist in favor of a new one. We may also wonder about states in which the constitution and public ideology were replaced but in which many of the prior elites or administrative structures remained in place (for example, in many of the transitions from communism in Eastern Europe). There is undeniably some vagueness in the level of regime change necessary for it to make sense to say that a new state emerged from a prior one, and it is probably impossible (not to mention unnecessary) to define this with precision. 

And what do we mean in a more vernacular sense when we say that a state continues to exist or not? Depending on what kind of change we are preoccupied with (territory, population, constitution, regime, name), this question can be confusing. Consider Iraq after the American invasion of 2003. On the one hand, the Baathist state that preceded it clearly ceased to exist because its administrative apparatus was destroyed and an entirely new constitution and regime were adopted. However, in another sense, of course, we think of “Iraq” as a state continuing to exist. The possible threats to Iraq existing as a state in this case (unlike other recent forms of regime change, say in Tunisia or Egypt) pertain to territorial integrity and some measure of shared national identity. Suppose the Kurdish regions of Iraq had succeeded in establishing full territorial independence. Suppose, in response to Shia majoritarianism, Sunni regions had also decided to secede. Suppose ISIS had succeeded in occupying and governing large parts of Iraq. Suppose global and regional powers (the US, Iran, Saudi Arabia, Turkey) had partitioned it in their own interest. So in a very important sense “Iraq,” not just as an idea or a territory but as a state, continued to exist, despite the profound change in regime. The key point here, though, easily missed, is not that “Iraq continued to exist” but that “Iraq continued to exist as a state.” Not necessarily as the previous state. An Iraqi nationalist or patriot’s interest in the continued existence of “Iraq” is not (necessarily) an interest in the form and substance of the previous regime continuing. None of this is to say that had Iraq separated into three new states there would have been a violation of an absolute moral right of a state of Iraq to exist. Any rights violations would have to be identified on other bases.

What Is a Right?

To this point, I have argued that states can disappear without a harm or wrong being done at all in the transformation, destruction, dissolution, or recombination of a state per se. Many of these examples would be considered to be positive changes in the world. Let’s call this wrongless state destruction. But this is obviously not to say that every transformation, destruction, dissolution, or recombination is harmless or wrongless. If Russia were to succeed in fully defeating Ukraine and annexing it to Russia, this would be a wrong. Arguably, some of my examples of revolution might also constitute wrongs, if not at the time of revolution then certainly over time. The Islamic revolution of Iran is one such case. In some cases, the harm of state-destruction is the resulting bloodshed, mass imprisonments, torture, human rights abuses, loss of livelihood, economic destruction, and so on. But in some cases, the harm might (without or in addition to all of these preceding harms) be to national self-determination and democratic rights. Suppose a large power captures a neighbor in a relatively bloodless invasion, thereby destroying the previous state; for example, the German Anschluss of Austria in 1938. A wrong and an injustice have clearly occurred. But of what kind, and to what or whom?

When a state disappears, what or who do we think has been harmed? What right was violated? Consider one of the dominant theories of what a right is, the interest theory of rights, most associated with late philosopher Joseph Raz: “‘x has a right’ if and only if x can have rights, and, other things being equal, an aspect of x’s well-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty.”¹ Suppose that the destruction of the Imperial State of Iran (1925–79) and the creation of the Islamic Republic of Iran involved not just harm but wrongs and rights violations. Whose? Only a royalist would claim that the “x capable of having rights whose well-being (interest) created duties in others” was the shah himself or the state known as the Imperial State of Iran. Rather, the view is that the Islamic revolution created a new state that engages in severe violations of the rights of Iranians (not necessarily “the Iranian people” in the sense of a unitary collective agent). It is more plausible that in the case of the Russian invasion of Ukraine or the non-offensive state conquered in a blitzkrieg invasion, the “x capable of having rights whose well-being (interest) created duties in others” is the state in question. But why? What is doing the work?

The obvious answer is that we consider the state in question to enjoy legitimacy. A state like Ukraine not only enjoys legal continuity with the former Soviet Republic of Ukraine but also enjoys the support and acknowledgment of the vast majority of its population (as the response to the invasion indicates). Moreover, the post-Soviet state of Ukraine did not come about as a result of mass ethnic cleansing (compared to other parts of the Soviet Union and many of the successor states of Yugoslavia), and it was a state in which all of its citizens regardless of language or nationality had equal citizenship rights. Thus, had Russia successfully annexed Ukraine, the democratic rights of those who live in Ukraine (note I avoid the metaphysical question of whether “Ukrainian people” has some definition other than that) would have been violated, in addition to all of the direct human rights violations resulting from the war itself.

So, when we ask what right was violated in the hypothetical destruction of the state of Ukraine, we are asking, “Which ‘x’ has an interest that is a sufficient reason for holding some other person(s) to be under a duty?” The answer to that is clearly the citizens of Ukraine, not the state in an independent sense. Suppose, as a historical counterfactual to the actual events since 2014, large parts of Ukraine had voted through a free and fair referendum to secede and form an independent state or to join Russia, and the rest remained (rump) Ukraine or “West Ukraine.” In this case, no right of the state of Ukraine would have been violated (although the interests, desires, aspirations, and hopes of many people would have been harmed). But the central moral point in this case is that, even if some abstract entity called the “Ukrainian state” is not the ultimate rights holder, a fortiori the Russian state is not the rights holder over the people and territory of Ukraine.

In every case we have considered of a state that no longer exists, to lament the disappearance of the state is thus to ask first, “Which interest is sufficiently weighty to hold others to be under a duty?” But who is the one doing the asking, and what counts as a reasonable answer to this question? Let’s assume that we are asking this question as democrats who believe in the moral equality of persons and in the right of all persons to have a share in decisions about their interests. 

So, with the fall of the Ottoman Empire and the subsequent abolition of the office of the caliphate, someone might coherently say that God has a right in the maintenance of this office, the ummah has a right in the maintenance of this office, and the sultan/caliph himself has a right to the office derived from the rights of God and the ummah. But these are not democratic claims, and they are not claims that we can really try to reconcile with our interest in this question as democrats. (To be sure, it is entirely possible that, given democratic consultation, a significant majority of the citizens of the Ottoman Empire or some large part of it would have chosen to preserve the office of the caliphate in some form or another, and so we might say that the destruction of the Ottoman Empire and its replacement with the Republic of Turkey and various other successor states did violate the democratic interests of the citizens of the empire.) 

Consider also the dissolution of Czechoslovakia. This appears by all accounts to enjoy the long-term approval of the citizens of both successor republics. There are no Czech or Slovak irredentists or revanchists, and no significant and enduring “Czechoslovakist” movement or party after 1993. But the decision to dissolve Czechoslovakia was arrived at by elite bargaining by the Czech and Slovak prime minsters (ratified by the various parliaments in question) and never subjected to public referendum. So there is a plausible claim that the dissolution of the state of Czechoslovakia violated the democratic interests of the people of Czechoslovakia. (One poll in September 1992 showed “only 37 percent of Slovaks and 36 percent of Czechs said they would vote for a split in a referendum, but more than 80 percent said they considered a break inevitable.”²)

Identifying the “people” as the interest holder thus seems like an obvious and easy democratic answer to our question. But as political theorists have long observed, this is the beginning, not the end, of our problems. Who is the “people” that should have decided on the partition of Ireland in 1920–21? All the people of Ireland? Only the people of the six northern counties? All of the people of the United Kingdom? To return to the Czechoslovak case: What if 90 percent of Czechs had voted to preserve Czechoslovakia but 65 percent of Slovaks had voted to dissolve it? Identifying who is “the people” that gets to make foundational, constituent democratic decisions is perhaps the core problem or paradox at the heart of modern democratic theory. But it is not resolved by saying that, therefore, states are agents or identities with independent rights to exist. (Although a non-democrat, perhaps in the Hobbesian or Schmittian vein, could argue that because attempts to resolve such decisions democratically can never lead to democratic consensus, we are best off acknowledging the right of states to assert order.)

But even where we can identify the agent (human beings individually and collectively) and the interests (security, rule of law, democratic rights, political freedoms, human rights, economic prosperity), this is not the same thing as identifying the right. The move from interests to rights involves not only identifying the relevant interest holder and not only establishing that a particular interest is weighty enough to necessitate a right but also identifying which others are under which duties given the interests of some agent x, and in which conditions agent x’s interests create those duties in others.

Suppose the Serbian-speaking population of Bosnia circa 1991 identifies itself with certain shared interests and those interests include democratic rights. Suppose this population of Bosnia circa 1991 decides that it has a very strong interest in self-government and control over a contiguous territory in the form of a state. Neither is “the Serbian-speaking population of Bosnia circa 1991” illegitimate as an agent nor is “self-government and control over a contiguous territory in the form of a state” illegitimate as an interest. But what duties do these interests create in others such that we could speak of them as creating a right? In 1991, as is agonizingly well-known, the population of Bosnia was far too intermixed to easily create ethnically dominant (never mind homogenous), territorially contiguous states. So it is vacuous at best to speak of the rights of Bosnian Serbs to a state without considering the circumstances and impact on the interests and rights of others. The question is against whom do the Bosnian Serbs have a right to a state? Against an outside invader that covets their territory or wishes to harm them? Against Serbia proper? Against a neo-Tito-esque revanchist that wishes to restore unified Yugoslavia? Or against others living on the same territory with the same moral status and same interests but with different aspirations or conceptions of national identity?

Who Has a Duty to Recognize a State’s Right to Exist?

To recap, states themselves do not have independent rights, or what we might call original rights. States are derivative of the human, democratic, and justice-based rights of the people that they exist to serve. So what does it mean to demand that others recognize the right of a state to exist? First are all of the questions above about what it means to talk about the existence of a state.

If I say, “I demand that you recognize the right of Ukraine to exist,” what does that mean? What is Ukraine? Is it within its territorial boundaries up to 2014? Between 2014 and 2022? Since 2022? What if someone replied, “I recognize the right of Ukraine to exist but without Crimea and Donbas”?

Does it mean within its present constitution? What if someone replied, “I recognize the right of Ukraine to exist as a federal binational state with substantial autonomy rights for oblasts including rights over natural resources, language, and migration”?

Does it mean with its present identity and nomenclature? What if someone replied, “I recognize the right of Ukraine to exist as a federal binational state to be renamed ‘Ukraine and Transdnipro’”?

If I say, “I demand that you recognize the right of the Bosnian Republika Srpska to exist,” what does that mean? Suppose someone replied, “I recognize the right of the Bosnian Republika Srpska to exist but only within a more sovereign Bosnia and Herzegovina”? Or suppose someone replied, “I recognize the right of the Bosnian Republika Srpska to exist within the boundaries of the Dayton Accords, but only on the condition that everyone who was displaced as a result of ethnic cleansing between 1992 and 1995 is allowed to return to their prewar home”?

In all of these responses there may be good or bad faith, reasonableness or unreasonableness, benefits and dangers, but amongst the harms or moral risks none of them is explained by the separate and original right of a state to exist against whatever other human interests and historical claims that might exist at the same time.

* * *

What do all of these distinctions, historical examples, and historical counterfactuals have to do with public demands to recognize the right of the state of Israel to exist? 

First, returning to our above examples, what precisely is the “Israel” that is supposed to exist? Remember that a state is a sovereign administrative apparatus over a particular territory with a given name, defined by a particular constitution. If some state “Israel” has a right to exist, we might want to know over what territory? The international legal foundation for the existence of Israel is UN Resolution 181, which partitioned Mandatory Palestine. Does the Israel that has a right to exist include the territories assigned to it by the UN in 1948, the territories conquered between 1948 and the 1949 armistice, the territories conquered in 1967, Greater Jerusalem, and all of the settlements built within the West Bank? Someone who is asked to affirm the right of a state to exist might first want to know with precision what that state is and what its scope or extent is.

But that question is much more interesting for diplomats and negotiators than it is for moral principle. While members of Congress may find the slogan “from the River to the Sea” to be “a phrase that calls for the end to the Jewish state,” we should not forget that there exists a single state from the river to the sea right now. That state, of course, is Israel. Israel presently has full administrative, military, economic, and legal hegemony over the entire land from the river to the sea. 

Of course, what does not exist right now from the river to the sea is legal, political, and moral equality for all persons. Not all persons effectively governed by the same sovereign administrative apparatus have the same rights. Palestinian Arabs in the West Bank are effectively governed by Israel (albeit often through indirect rule with the help of the Palestinian Authority), but they do not have rights to vote in Israeli elections and do not enjoy the same civil, political, human, and economic rights as citizens of Israel (including Palestinian Arab citizens of Israel). Suppose someone were to say, “I recognize the right of Israel to exist, but on the condition that it grant the same civil, political, human, and economic rights to all persons effectively governed by it, which now includes all of the territory of Mandatory Palestine (plus the Golan Heights)”? 

I have severe doubts about the prospects for peace and democratic solidarity in such a unitary democratic state, but the vision itself is simultaneously a morally respectable, even admirable, aspiration and, yes, would require the transformation of the state of Israel as it exists now into something else. Presently, “Israel” denotes a unitary state with military and administrative control over the entire land between the river and the sea but with radically unequal civil rights for different populations within that territory. That is part of the de facto constitution of the present state. In that sense, a state governing the exact same territory as it does now but with equal civil rights for all persons living under its authority would in fact be a new state (let’s posit that it gets to keep the name “Israel”), just as the state that emerged out of South Africa’s transition from apartheid without changing its name, territory, or population was a new state. 

Is calling for the extension of civil and political rights to all persons governed by Israel a call for the end of the state of Israel? In one sense, yes. That sense is the same one in which the end of apartheid was the end of the former Republic of South Africa. But what, then, is calling for the end of the state of Israel in that sense not? It is not calling for the mass killing of any population presently living between the river and the sea. It is not calling for the mass expulsion of any population presently living between the river and the sea. Slaughtering or expelling civilian populations are evil acts—but calling for the extension of civil and political rights to all persons governed by Israel is emphatically not evil. It is a basic moral requirement of democratic principles.

States can change from one thing to another thing by a radical enough change in their constitution. This can come about as a result of civil disobedience or civil war. But it can also come about through demographic change. Should the six counties of Northern Ireland ever reunite with the Republic of Ireland, it would most likely, at this point, come about as the result of a peaceful, democratic referendum. (Figures from the 2021 census showed a total of 45.7 percent of people in the North are either Catholic or from a Catholic background, compared to 43.5 percent who are Protestant or from other Christian denominations.) To the extent that Northern Ireland is something state-like (or the present United Kingdom as a state is defined as including Northern Ireland), its incorporation into the Republic of Ireland would mean the end of that state-like entity. But suppose something else happened. Suppose that the six counties of Northern Ireland, with broad cross-confessional support, declared independence from both the contracting United Kingdom and the Republic of Ireland and sought membership in the European Union. That would be the culmination of a process of transforming the identity and governance of the six counties from the Protestant, Unionist “Orange” entity that was the vision of many after 1920 into a different type of regime.

Without the annexation of the West Bank and the extension of political rights to Palestinians, it is difficult to see something like this—a demographic majority freely voting to change the identity and constitution of the state—happening soon in “Israel minus the West Bank and Gaza.” But when we talk about “the right of Israel to exist,” remember Raz’s formula: “x has a right if x can have rights, and, other things being equal, an aspect of x’s well-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty.” Who is the x that can have rights, which interest is sufficient reason to generate rights, and who are the others under a duty to uphold these rights?

Would “Israel” have a right to exist if no or few Jews lived between the river and the sea? That question is tricky. Both secular and religious Zionists before 1948 sought to create Israel (and extract commitments to its existence) not on the basis of the rights of an existing majority presently living on that land but on the basis of their aspiration to create a population of persons not yet living on that land. But let’s assume that today, what is meant by the phrase “Israel has a right to exist” is “the majority population presently living within the state ‘Israel minus the West Bank and Gaza’ has a right to exist.” 

What are the interests that are strong enough to generate rights, what are those rights, and in whom does it create duties? The most straightforward interests are those to security and the democratic interests of rule of law, representation, and self-determination. Those interests are strong enough to generate duties in others. But which others and which duties?

The legitimacy of states is, on the democratic view considered here, entirely derivative of their function in securing the interests of persons. Just as our interest in education requires the existence of institutions that can provide education, so does our interest in security, the rule of law, representation, and protection from domination require institutions that can securely provide them. Our rights to certain goods or interests require a juridical context in which they can be provided, or what Hannah Arendt famously called “a right to have rights.” At present, there is no other institution or framework that can provide that juridical context other than a sovereign state.

Let’s posit, then, that everyone has the right to have rights and thus the right to live under sovereign statehood. In whom does that create a duty? Most straightforwardly, it creates a duty in other states—a duty not to deprive persons of the goods they enjoy from living in a more or less decent or legitimate sovereign state by attacking or destroying that state structure. Secondly, it creates a duty in the rulers of a particular state to govern it in accord with the reasons for which the state legitimately exists. 

But do we have a right to live in a particular sovereign state? That depends. There are many good reasons why we would want to live in a state in which we are part of an ethnic, cultural, linguistic, or religious majority. But the harm or injustice of not living in such a state depends on how much your most important civil, human, and democratic interests are infringed upon in your present state. The case for the independence of Kosovar Albanians or Chinese Uyghurs is for obvious reasons much stronger than that of the Catalans or the Welsh. 

But it also depends on what other interests of others would be impacted by the creation of a new sovereign state. The right to have a particular state with a particular constitutional form, particular territory, and particular demographic majority needs to be justified not only against other states and that state’s own rulers but against other persons and communities. No one whose democratic commitments are the size of a mustard seed can claim that the indigenous people of Mandatory Palestine consented to be governed by the British and consented to have their land partitioned. Even leaving aside the right of migration to Mandatory Palestine, if the Jews of Mandatory Palestine had legitimate interests in security, the rule of law, representation, and protection from domination and this created a right to have rights (in the form of a sovereign state), did this create a duty in Arabs of Mandatory Palestine to cede land in order to allow for a particular ethnic, cultural, linguistic, or religious majority to have a particular form of state? Did it create a duty for them to leave or, once gone, to never return? What is the interest from which was derived the right to expel an indigenous population and to make sure that it never returned home? 

So what does it mean to say that Israel in its present form has a right to exist? It does not mean primarily that it has a right not to be destroyed by other states. (The surrounding Arab states are still often touted as a grave threat to Israel despite the fact that they have all either entered into peace agreements with Israel or have themselves been functionally destroyed through war.) It means that persons who lived in or are the first- or second-generation descendants of those who lived in the land that constitutes Israel are under a duty to recognize that the interests of others who settled in their homeland vastly outweighed their own interests in security, property, and self-governance. It means that those persons are under a duty to acknowledge that they were rightly displaced and dispossessed. It means that those persons are under a duty to forswear any hope of return or reclaiming their homes. It means that those persons who presently live in the territory of former Mandatory Palestine and are governed by Israel but do not enjoy equal civil and human rights must forswear any demand of being governed equally in a single state with all other persons presently living in the territory of former Mandatory Palestine.

What could—for democrats—possibly justify those as moral duties? That one group of people is superior or more worthy than another is not an answer that a democrat can accept. That expulsion and dispossession is a legitimate collective punishment for the violent actions of militant groups is also not an answer that a democrat can accept. The only possible answer that I can imagine is that the return of Palestinians from exile, or the granting of citizenship to Palestinians in the West Bank (and even Gaza), would be a recipe for civil war, a humanitarian disaster. This is not implausible. But we should then be clear that on principle we are not talking about the right of a particular state to exist but rather an acknowledgment of the reality of military conquest and a gruesome calculation of clashing humanitarian claims. 

Thus, what does it mean to say that Israel has a right to exist? In effect it means something like “The humanitarian risks of correcting historical injustice and restoring the rights of those whose control over their land was illegitimately taken away are simply too great. Justice cannot be served except at a great humanitarian cost, most likely to both populations.” That statement has as much wisdom or validity as any moral compromise in conditions of asymmetric power and uncertainty. But those who, however idealistically, hold out hope for a scenario in which the legitimate interests of both communities to life, security, peace, and democratic rights could be achieved within a single state (a state that would not be the state that exists today) imagine nothing that is wrong or morally objectionable per se.