Reflections on The Thin Justice of International Law: Peace, Justice, and Secession

| June 2015
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This essay is part of an online book symposium on Steven Ratner’s The Thin Justice of International Law. To read the other contributions, click here. For the contributions on EJIL: Talk!, click here.

9780198704041This is an eminently sensible book. It reflects the practical wisdom of an international lawyer who, in dialogue with a wide range of scholars and practitioners, has thought deeply and carefully about the promise and limits of international law as a means for realizing global justice. I found myself agreeing with many of the specific conclusions Ratner defends, at least when formulated as claims regarding the best we can hope for from international law in the present and the foreseeable future. But not in all cases; for example, I suggest below that the case for a total legal ban on secession, or at least deliberate ambiguity regarding the question of whether secession is ever legally permissible, may be stronger than Ratner recognizes. Our more significant disagreements, however, may be theoretical rather than practical. In particular, I maintain contra Ratner that peace should not be characterized as a component (or, in his language, a pillar) of justice. This dispute over the relationship between peace and justice matters, I contend, even if it rarely leads to different prescriptions. I also suggest that Ratner’s disputes with many of the philosophers of global justice he identifies as opponents turn not on any deep methodological disagreement but simply on different empirical conjectures regarding the likely consequences of adopting rival international legal norms (for example, governing secession, humanitarian intervention, and so on).

The thin justice of international law consists of two pillars, peace and basic human rights, with the former understood as “principally the absence of armed conflict” (98). My concern with the inclusion of peace as an element of a theory of just international law is as follows: either it conflicts with what I believe to be at least a necessary element of the concept of justice—namely, that justice involves giving people their due—or appeals to it are merely a closeted empirical prediction that a proposed international legal norm that more accurately reflects what justice requires (where that is understood in terms of respect for human rights) will lead in practice to greater human rights violations than will a legal norm whose content conforms less closely to justice.

Consider the latter claim first. Suppose it is true that, given the deep moral disagreements, conflicts of interest, and power differentials that currently provide the backdrop to international relations, an international legal norm L that limits secession even in some cases where justice permits it will produce a more peaceful world than will an international legal norm L2 that more closely approximates, or even perfectly mirrors, justice. Plausibly, a more peaceful world will be one in which fewer people suffer violations of their (basic) human rights. If so, then the concern to advance the protection of human rights by, at the very least, minimizing the extent to which international law encourages acts and policies that violate them justifies the choice of L over L2. In this example, peace is not an independent moral consideration to be weighed against human rights; it is simply shorthand for the claim that one norm will lead to fewer human rights violations than the other. And though I cannot document it here, I had the sense as I read through Ratner’s book that this was the implicit argument being made whenever a philosopher’s proposal for reforming international law to make it more just was rejected on grounds that it gave insufficient weight to the pillar of peace. Note that we can accept Ratner’s conclusions in these cases without having to endorse his commitment to peace as a distinct element of the conception of justice we should use to evaluate international law.

Ratner appears to consider an argument like this, and points out in response that it would be a mistake to treat peace as valuable solely for its contribution to the secure enjoyment of basic rights. Peace also contributes to human flourishing beyond merely enjoying one’s human rights, as well as animal and planetary welfare. Fair enough, but it is not clear that Ratner relies on any of these further reasons for valuing peace when he assesses alternative candidates for legal norms governing statehood, the global economy, and so on. Moreover, Ratner tells us almost nothing about these further values except, briefly, to acknowledge that thin justice may be of limited value in appraising international environmental law. This adds to the suspicion that it is really just the threat armed conflict poses to the secure enjoyment of basic human rights that does the argumentative work when Ratner appeals to peace to criticize an actual or proposed law.

Peace might be viewed as both unconditionally valuable and independent of its contribution to the secure enjoyment of rights if we equated its opposite with suffering, and held that reductions in suffering are intrinsically valuable regardless of whether those who enjoy them have a claim to them. This view, it seems to me, is sometimes implicit in the arguments of those who advocate for peace in long-running conflicts; let us bracket claim and counter-claim, rights and reparation, and focus simply on the good that is a world with fewer deaths, injuries, and so on. While this characterization of peace’s value avoids reducing it to a claim regarding which action will minimize rights violations, it also makes clear that peace so valued is not a component of justice. At a minimum, justice is a matter of giving people their due, and a theory of justice is an account of what people are due, for example, as perpetrators of crimes; or victims of another’s unreasonable risk-taking; or as participants in a cooperative scheme that produces burdens and benefits; or as agents who differ in no relevant respect from certain others subject to institutions that distribute punishment, employment, or educational opportunities; and so on. Ratner seems to recognize this, for after recounting the myriad evils that war and other forms of systematic violence have wrought he writes “we might go so far as to say that people deserve peace in the sense of living in an environment free of violence, terrors, and traumas of armed conflict” (70). His one-sentence defense of this claim gestures at a luck egalitarian conception of justice that, even if defensible (which I doubt), does not obviously support a claim to peace apart from the contribution it makes to people’s secure enjoyment of their human rights.

Why think it matters whether we treat peace as a component of justice or as a distinctive value the advancement of which sometimes warrants limiting our pursuit of justice? After all, the practical conclusion will be the same: for example, the defense of an international legal norm creating a near total ban on secession. The difference lies in what we say to those we treat unjustly in defending such a rule: not “this international legal norm is just because it is the best we can do under the present circumstances,” but “this international legal norm sanctions your unjust treatment precisely because it anticipates that other actors would respond unjustly (though perhaps blamelessly) to your exercising your moral right to secede, and the fact that they would likely so respond warrants us in trying to discourage you from exercising that right.” As H.L.A. Hart argued in his discussion of the grudge informer case, we ought to publicly acknowledge when our pursuit of one value (retributive justice, in Hart’s example) requires us to act unjustly (in violation of rule of law norms).

Ratner maintains that his defense of peace as a component of justice is distinct from debates over the relationship between peace and justice in transitional societies. To the contrary, I think those disputes illustrate two points that are crucial for our moral assessment of international law. First, justice concerns giving people what they are due, and given self-interest and reasonable disagreement over what people are due, the attempt to do justice can threaten peace. Second, theorists are capable of recognizing and seeking to adjudicate conflicts between the values of justice and peace without needing to treat the latter as a component of the former, and in doing so openly confronting the limits that deep moral and material disagreement, historical antagonisms, and other factors place on doing justice.

That theorists are capable of recognizing and seeking to adjudicate conflicts between justice and peace does not entail that they will do so, or do so well. This, I think, is Ratner’s primary complaint against many philosophers who write on global justice and international law. These philosophers are insufficiently attentive to the way in which existing international law takes the shape it does because doing so enhances its ability to facilitate peaceful relations between and within states, and the ways in which their proposals for reform might threaten international law’s ability to perform that task. In fact, I think this captures entirely the dispute between Ratner and the philosophers he identifies as opponents, despite his attempt to characterize those differences as reflecting deeper methodological disputes. For example, Ratner distinguishes between social contract, deontological, and consequentialist approaches to evaluating international law, and adopts the last of these. We should distinguish, though, between (a) elaborating and defending a conception of global justice, (b) evaluating international legal norms in light of that conception of justice, and (c) drawing a conclusion regarding the all things considered justifiability of an actual or proposed international legal norm. Theorists might adopt any of the aforementioned methods for the purpose of developing a conception of global justice while maintaining that legal norms should be evaluated in terms of their effects on human conduct; that is, the extent to which they contribute to the realization of that conception of justice by influencing the ends actors set and the means they adopt to achieve those ends. And, to reiterate the point made earlier, a theorist might argue that the law is unjust to the extent that its content deviates from what justice truly requires, while also arguing that it is justified all things considered given the likelihood at present that a closer approximation would cause more injustice than will occur under the norm in question.

Nor is it clear how deep the distinction is between those who reason institutionally and those who do not. Ratner paints the difference as a matter of the order in which a theorist reasons about the justice of international law: institutionalists begin with an account (or at least an idea) of what is possible, and then seek to identify the morally best state of affairs among that set. Non-institutionalists, in contrast, start by identifying the morally best state of affairs, and then attempt to conceive a realistic institutional framework that best approximates that ideal. In principle, it is unclear why we should prefer one order to the other; indeed, we should probably move back and forth between them in an effort to draw conclusions that are neither apologies nor utopias. In practice, those who begin by developing a pre-institutional theory of global or international justice may fail to consider with sufficient care (or at all) the constraints that the existing international order puts on what we can hope to achieve via international legal reform, at least in the short to medium term. But conversely, those who start with what is possible run the risk of being both too conservative with respect to that question while also failing to fully acknowledge just how much injustice they condone.

Secession is one issue on which Ratner’s disagreement with his critics appears to turn entirely on competing hypotheses regarding the likely consequences of rival norms. Ratner defends the superiority of an international legal norm that permits secession only in case of gross abuse of basic human rights to both a norm that categorically bans secession and more permissive norms such as those defended by David Copp, Andrew Altman and Christopher Wellman, and David Miller. The former, Ratner argues, fails to meet thin justice’s human rights pillar, while the latter fail to meet the peace pillar. I have some doubts in both cases. Ratner’s preferred legal norm governing secession creates an incentive for secessionist groups to provoke the governments that rule them into perpetrating grave human rights abuses. There is some evidence that the Kosovo Liberation Army pursued this strategy in order to draw NATO into fighting for its de facto independence from Serbia. A complete ban on secession, or even preserving ambiguity and uncertainty regarding the legality of secession, might reduce the likelihood of such occurrences. The door would remain open to respond politically to gross violations of human rights, with international law offering no ex ante guidance but eventually reflecting ex post a successful secession.

On the other hand, I think Ratner too quickly dismisses Copp’s and Altman and Wellman’s claim that we lack compelling empirical evidence that a more permissive legal norm governing secession will result in greater violence. In particular, they emphasize that in making such a judgment we must focus on the difference international law will make to what existing states and would-be secessionist groups do. This is extremely difficult to discern, and pointing to a number of violent secessionist conflicts in the past, as Ratner does, does not demonstrate that a more permissive norm will lead to conflicts that would otherwise not occur. Ratner’s second response to Altman and Wellman’s agnosticism regarding the likely consequences of more or less permissive laws governing secession may be more promising, but it is in need of far more development and refinement than he offers. That response appeals to the precautionary principle. How to formulate such a principle so that it is both precise enough to be action guiding while also compelling as a principle of rational choice is a vexed issue. But one fairly conservative formulation might fit well with Ratner’s thin justice of international law. This formulation equates the precautionary principle with maximin reasoning, and it is rationally compelling only in those cases where decision-makers (ought to) have little confidence in the probabilities they assign to different outcomes, (ought to) care little for the potential gains they forgo relative to the minimum they aim to secure, and view the failure to secure that minimum as unacceptable or a catastrophe. Ratner might then accept Altman and Wellman’s agnosticism—in effect, that we must act under uncertainty—while defending life in the absence of thin justice as catastrophic, and arguing that the potential gains possible under their preferred norm governing secession are insufficient in either degree or kind to warrant any risk to realizing thin justice. Though hardly uncontroversial, this strategy may be Ratner’s best path forward if I am right in thinking that his disagreements with many philosophers writing on the justice of international law today turn on the veracity of their competing beliefs regarding the likely outcomes of the competing legal rules they defend.

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Category: Book Symposium: The Thin Justice of International Law, Online Exclusive

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