UNIVERSITY OF CALIFORNIA Los Angeles The State Obligation to Protect A dissertation submitted in partial satisfaction of the requirements for the degree Doctor of Philosophy in Philosophy by David Louis Attanasio 2015 © Copyright by David Louis Attanasio 2015 ABSTRACT OF THE DISSERTATION The State Obligation to Protect by David Louis Attanasio Doctor of Philosophy in Philosophy University of California, Los Angeles, 2015 Professor Seana Shiffrin, Chair This dissertation proposes an explanation of why the state has a special moral obligation to protect individuals in its legal territory against violence committed by private actors. Having an explanation of this obligation will allow us to better determine a number of its major characteristics, including to whom the state owes this obligation— the scope of the obligation—apart from those persons actually located in the state‘s legal territory. It argues that the state has a special moral obligation to protect because the state is the fiduciary of those individuals in its legal territory and has a fiduciary obligation to advance their purposes reasonably. Since obtaining security from violence is a normal and fundamental purpose of individuals, the state has a fiduciary obligation to protect them from private violence. To support this conclusion, the dissertation evaluates whether the most plausible explanations of the special obligation to protect can account for our moral intuitions. Apart from the fiduciary explanation, it considers and rejects four alternatives. First, the obligation to protect might arise as an application of an inherent duty to promote justice, including by protecting against acts of violence. Second, it might arise because ii the state normally contributes causally to the harm from most or all acts of violence that occur in its territory, so it has an obligation to protect against that harm. Third, it might arise because the state implicitly promises to protect by communicating a claim that it has a monopoly on the legitimate use of force. Fourth, it might arise because the exercise of coercive political control is legitimate only if the state simultaneously protects against violence. After rejecting these alternatives, the dissertation explains, defends, and applies the fiduciary account to the question of the scope of the special obligation to protect. iii The dissertation of David Louis Attanasio is approved. Aslı Ü. Bâli Barbara Herman A. J. Julius Diego Eduardo López Medina Seana Shiffrin, Committee Chair University of California, Los Angeles 2015 iv TABLE OF CONTENTS CHAPTER 1: OVERVIEW 1 I. Introduction 1 II. Theoretical Interest of the State Obligation to Protect 10 A. Special Obligations to Compatriots 10 B. Obligations Corresponding to Human Rights 16 III. The State‘s Special Obligation to Protect 19 A. The Object of the Obligation 21 B. Required Means of Protection 25 C. Justifications and Excuses 32 D. The Scope of the Obligation 35 IV. The Structure of the Dissertation 39 CHAPTER 2: THE INHERENT DUTY OF JUSTICE 45 I. Introduction 45 II. The Duty of Justice and the State Obligation to Protect 48 A. Characteristics of the Duty of Justice 49 B. Protection and the Duty of Justice 52 III. Reconstructing a Special Territorial Obligation 53 A. Efficiency of Protection 54 B. Moral Division of Labor 63 IV. The Content of the Obligation to Protect 72 A. Exhaustion of the Obligation 73 B. Allocation of Protection 79 C. Competing Means of Promoting Justice 82 V. Conclusion 85 CHAPTER 3: POTENTIAL CAUSATION OF HARM 87 I. Introduction 87 II. Causation and Protection 90 A. Causation, Outcome Responsibility and Protection 90 B. Causation and the State Obligation to Protect 92 III. Contribution to Violent Acts 94 A. General State Policy and the Causal Moral Principle 94 B. State Constitution of Social Relations and the Causal Protection Principle 104 C. Conclusion 111 IV. Displacement of Protection 112 A. Beermann on Displaced Protection 113 v B. Displaced Protection and the State 116 V. Causation and Other State Obligations to Protect 123 VI. Conclusion 125 CHAPTER 4: PROMISES AND RELATED PHENOMENA 126 I. Introduction 126 II. Promise-based Explanations of the State Obligation to Protect 127 A. States and the Claimed Monopoly on the Legitimate Use of Force 132 B. Reasonable Assurance and Moral Obligations 136 C. Claims of Monopoly and Reasonable Assurance 139 D. Conclusion 143 III. The Adequacy of Promise-based Explanations 144 A. Individual Interests and Assurance Obligations 145 B. The State and Freedom of Action 153 IV. Conclusion 169 CHAPTER 5: THE LEGITIMACY OF POLITICAL CONTROL 170 I. Introduction 170 II. Protection as a Necessary Condition for Legitimacy 173 A. Rational Interest and Liberal Legitimacy 176 B. System of Cooperation, not Domination or Oppression 183 C. Assurances and Political Control 188 III. The Adequacy of Legitimacy-based Explanations 198 A. The Wrong Sort of Obligation 198 B. Condition of Legitimacy as a Universal Explanation 201 IV. Conclusion 203 CHAPTER 6: FIDUCIARY OBLIGATIONS AND THE SCOPE OF THE STATE OBLIGATION TO PROTECT 205 I. Introduction 205 II. The Moral Theory of Fiduciary Obligations 209 A. Characteristics of Fiduciary Obligations 210 B. The Right of Independence in Setting and Pursuing Purposes 217 C. The Independence-Based Interpretation of Fiduciary Obligation 220 III. Fiduciary Obligations and the State Obligation to Protect 223 A. Political Power and the Obligation to Protect 224 B. The Content of the Fiduciary Obligation to Protect 231 C. The Scope of the Fiduciary Obligation to Protect 237 vi IV. The Scope of the State‘s Fiduciary Obligation to Protect 240 A. National Military Presence in a Foreign Territory 241 B. Foreign Military Presence in the National Territory 249 C. Citizen Presence in a Foreign Territory 252 V. Conclusion 256 CHAPTER 7: FUTURE DIRECTIONS 257 I. Introduction 257 II. The Normal Requirements of the Obligation 258 A. The New Array of Possible Protection Measures 258 B. The Range of Required Measures of Protection 261 C. The Role of State Discretion 262 D. Sufficient Levels of Systematic Protection 264 III. Persons Excluded from the Special Obligation to Protect 266 IV. The Special Obligation and other International Protection Obligations 267 V. Conclusion 268 BIBLIOGRAPHY 269 I. Academic Materials 269 II. Legal Materials 291 A. Cases 291 B. Treaties and Other International Instruments 295 C. Constitutions, Statutes, and Regulations 295 D. Other 296 III. Other Materials 296 vii ACKNOWLEDGMENTS I want to thank my family for their support throughout the many years it took to finish the doctorate. My wife, Zully Meléndez, has graciously remained enthusiastic and encouraging during the last two years, even when work on the dissertation took me away from her for too many nights and weekends. I am grateful to my parents, Patricia Davison and John Attanasio, my sister Laura Attanasio, and my grandparents, Louis and Angeline Attanasio, for their continuous support during the ups and downs of my graduate studies. Finally, thanks to my dog, Little Luca, who has literally been by my side for much of the writing process. I am deeply appreciative of the support for this project that I have received from all the members of my committee. My chair, Seana Shiffrin, stuck by me even when she had absolutely no obligation to do so, which allowed me to return to my philosophy studies and complete this project. She has patiently read countless drafts of this dissertation and also my earlier work, always giving me insightful comments that have vastly improved my research and writing abilities in general and this dissertation in particular. Diego López, a member of my committee and also a good friend, provided the encouragement I needed to return to and finish the dissertation following law school. Before I began work with Seana, Barbara Herman shepherded me through my first big philosophy project, the third year proposition. Finally, my thanks to Aslı Bâli for her comments on the final text of the dissertation and to A.J. Julius for his feedback during my Doctoral Oral Qualifying Exam. A number of other people made crucial contributions to the completion of this dissertation. Two of my fellow students from UCLA, Sonny Elizondo and Yannig Luthra, were kind enough to read a number of drafts during the last few years. My work with Camilo Mejía at the Comisión Colombiana de Juristas initially inspired my interest in the state‘s legal obligation to protect. Fernando Delgado and Tyler Giannini of the viii Harvard Law School supported legal research on the human rights law concerning the obligation, which eventually led me to research its moral foundations. Finally, I very much appreciate the institutional backing I have received during the years I spent writing this dissertation. The project was carried out while a Visiting Professor at the Universidad de los Andes and a Professor at the Universidad de Bogotá Jorge Tadeo Lozano. I began the work while holding a Fulbright Fellowship and a Frederick Sheldon Traveling Fellowship from Harvard University. ix VITA EDUCATION Juris Doctor, cum laude, Harvard Law School (2012) Candidate in Philosophy, in philosophy, University of California Los Angeles (2008) Master of Arts, in philosophy, University of California Los Angeles (2008) Bachelor of the Arts, summa cum laude, in physics and philosophy, Tufts University (2003) EXPERIENCE Dechert LLP, Associate, International Arbitration Group (2015 – present) Universidad de Bogotá Jorge Tadeo Lozano, Professor of Law (2013 – 2014) Universidad de los Andes, Visiting Professor of Law (2012 – 2013) Comisión Colombiana de Juristas, Intern, Legal Protection Area (2011) Dejusticia, Intern, Transitional Justice Area (2010 – 2011) University of California Los Angeles, Teaching Fellow, Philosophy (2004 – 2009) PUBLICATIONS Militarized Criminal Organizations and Human Rights Court Review of State Protection Efforts: Evidence from Colombia, 41 FLA. ST. U. L. REV. 341 (2014) Return within the Bounds of the Pinheiro Principles: The Colombian Land Restitution Experience, 11 WASH.