Response to Critics of The Thin Justice of International Law

| June 4, 2015
Print Friendly

9780198704041This 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.

The responses to The Thin Justice of International law from four international lawyers and two philosophers represent a welcome continuation of the dialogue I have tried to catalyze with my book. Most of the comments were directed to the theoretical framework, rather than my individual conclusions about the justice of particular norms. So I will focus on those broad concerns. At the same time, I hope readers will also judge the framework not merely in abstracto, but by how well it handles the individual norms that it appraises. If its discussions and conclusions about the justice of the rules on force, self-determination, sovereign equality, IO membership, and other topics prove convincing or at least set some terms for future debates, then the framework will have done what I wanted it to do.

The comments raise so many points that I can only address them briefly here. I will try to tackle them thematically, in a way accessible to readers of both blogs.

The Source of the Two Pillars—Internal, External, Pro-Western?

My move in deriving the two pillars is set forth early in the book. First, I endorse the centrality of impartiality to any theory or standard of justice, which (contra Fred Mégret) I believe represents a cosmopolitan grounding for thin justice; and then, I opt for a mostly consequentialist approach to assessing justice. Based on this groundwork, I rely on the logics of discovery and appropriateness in identifying, and then defending, the two pillars themselves, echoing a move that Rawls defended at the beginning of A Theory of Justice. Jean D’Aspremont applauds this approach, which he calls a “mushroom” theory that avoids the pitfalls of both pure empiricism and natural law (though I confess I never thought of moral philosophy as natural law.) But Anne Peters, Mégret, and Robert Howse, to varying degrees, see the standard as either too internal to the system it seeks to appraise, or, worse (I guess), too embedded in a Western mindset. (The two philosophers, Kristen Hessler and David Lefkowitz, do not seem particularly worried about this move.)

As for whether the standard is internal to international law, if it were merely that, there would certainly be a circularity to my use of it to appraise international law. But it is not for two reasons. First, I regard the two values of peace and protection of human rights as internal to “the normative structure of international affairs,” (p. 65), not just to international law. Second, it is central to my argument that those values that I discover must be distilled into ethically defensible principles of justice. So I make that argument—that promotion of peace in a way that does not interfere with the enjoyment of basic human rights is a compelling standard of global justice against which to measure international law.

As for cultural bias, it’s a pretty hard claim for any scholar to rebut, for we are all from or working somewhere. Yes, I am a Western academic, in case anyone hadn’t noticed, who has spent most of his life in the U.S. and Europe; and some of the core theory builds on the work of Western scholars, notably Rawls, Barry, Walzer, Feinberg, and Hare. Oh yes, and Kant, Mill, and Bentham too. Like others, I do my best to engage in self-scrutiny and be aware of my observational standpoint, and I appreciate other well considered ideas of justice. More important, I don’t see the two pillars of thin justice as culturally determined but rather as immanent within the structure of international affairs (or society, as the English School would put it). In particular, my set of basic human rights is based on those core human rights that most states currently claim to recognize, regardless of culture. I offer—and, for my purposes in the book, need only offer—a pragmatic view (like that of Charles Beitz) of human rights, not a ground-up theory (like that of James Nickel or James Griffin).

Peters adds that the dynamic between the two pillars is fundamentally constitutional in its method of balancing. I do give global constitutionalism short shrift in the book, as my project is not about embedding international law’s rules within some other structure, whether constitutionalism or legal pluralism. If readers identify my methods as constitutional, that’s fine, but I think of it as moral reasoning. The pillars help us evaluate the justice of international law, and the appraisal of international law also tells us something about the contours of global justice.

 Missing Theoretical Foundations (or More Ideal Theory)?

Kristen Hessler and Mégret point out that a number of theoretical issues remain unexplored in the book. This is certainly true. Hessler points out that an inquiry into the legitimacy of international law would help our understanding of the justice of the norms themselves. I agree it would help. It’s a valid project both for philosophers (but only those who understand something about international law) and for international law scholars (but only those who know some philosophy). Some scholars are already working on it (for example., John Tasioulas). I address some concerns about system legitimacy—for example, in my analysis of sovereign equality when it comes to unequal treaty partners; my discussion of international organizations that allow for unequal voting rights; and my treatment of procedural fairness in implementing rules. But in general I do assume for this book that it is morally acceptable for states to prescribe international law. (Elsewhere, I’ve also considered some very idealistic possibilities for public participation in the development of jus cogens.)

Mégret’s concern is that I too readily assume the existence of the state system and need to defend the existence of a diversity of states. I do assume that we need states; again, I’ll leave it to others to make the case why. (And assuming that does not preclude multiple layers of governance, as my ample discussion of the EU and UN make clear, contra Howse’s reading of my book.) As for the diversity of the system, my chapter examining sovereign quality seeks to address that.

The Pillar of Peace: Part of Justice? Distinct from the Human Rights Pillar?

Some of the commentators seem uncomfortable with the idea of peace as a component of global justice. Lefkowitz, echoed by Howse, in particular says the peace pillar either (a) reflects a misunderstanding of the meaning of justice, or (b) is simply duplicative of the pillar of human rights. On (a), they see justice in terms of, as Lefkowitz says, “giving people their due.” Relying on Brian Barry, I define global justice in slightly broader terms, as “a process or outcome that assigns rights and responsibilities to global actors so that it is clear what each such actor is entitled or required to do or have.” (p. 45). Either way, I think determining what people are due based on the extent to which giving it to them will disrupt international or intrastate peace is completely consistent with the idea of justice. From the standpoint of consequentialist reasoning, it makes perfect sense to answer the question of whether a person is due x or y (whether x or y are rights, duties, bundles of goods, and so on) by considering the consequences for that person and others of their getting x or y. And to assume peace exists before that assignment of what is due is to miss the key difference between the domestic arena and the international one.

On (b), the first pillar is certainly meant to encompass the benefits to human welfare that flow from peace and extend well beyond basic human rights, whether economic, environmental, cultural, or educational. Lefkowitz is right that at times I do not make these consequences as clear as the deaths caused by war (obviously a violation of basic human rights). I agree that it is possible to develop a one-pillar model based on human rights; I just think it’s less convincing in terms of what global justice should entail and what standard of global justice should be used to appraise international law. So to take, for example, secession, the ethical defense of the law’s strong presumption against secession is that the rule strikes the right balance between peace and human rights, not between long-term and short-term respect for basic human rights. I also agree with Lefkowitz that my differences with some cosmopolitan philosophers I criticize is about the likely consequences of secession. But, as Robert Goodin has pointed out, if we argue in these consequentialist terms, we are able to have a more focused debate on the justice of the norm than would be possible by arguing in deontological terms.

Too Parsimonious: Does Thin Justice Need More Pillars?

A few of the reactions, notably Mégret, suggest that the theory needs more elements to it. One can ask whether my decision to accept the limits to theory with regard to certain norms—IHL, international criminal law, and international environmental law—suggests, as Mégret says, a need to “tweak” the theory. Some have suggested to me that the framework could use another pillar about economic development. I struggled with these questions in writing the book, and it was not easy for me to leave the framework without answers for three core sets of norms. (I agree with Hessler that I could have said that IHL was better than no rules at all in terms of non-interference with basic human rights, but this point seemed obvious to me.) But I was designing a framework that would have analytical purchase with a broad range of core norms; indeed, the appraisal of international economic law in terms of the second pillar only showed that even two pillars could be too much for evaluating some norms. To add more complexity risked introducing elements that would not play much of a role in examining most norms. Sensing that my theory was complex enough, I strove for something economical. The diversity of international law’s norms makes it very hard to examine their justice through one framework if that framework is not to become more complex than it is worth. (So, for instance, those writing on distributive justice issues typically have little to say about non-economic norms.) There is no unified field theory here.

The Hazards of Non-Ideal Theory

Hessler and Lefkowitz take some issue with my defense of non-ideal theory, though they are careful not to equate it with an apology for the status quo. I agree with Hessler that the ideal/non-ideal distinction is more of a sliding scale, even as I have encountered a fair amount of philosophy at the ideal end of the spectrum. Such theory helps us think about foundational questions. So if, indeed, there are significant moral shortcomings to the way international law is made, or even to the state system as a whole, it helps to think about those when we devise models of reform. As I say in the conclusion to the book, there is plenty of room in our interdisciplinary dialogue for very different approaches; I do not favor some mushy, merged approach to global justice.

Lefkowitz’s spin on this idea is that I can reach my conclusions without giving up on ideal theory by contrasting the justice of the norms under ideal theory with their “all things considered” justifiability. That way, for example, I can tell those non-persecuted people who want to secede that the rule of international law denying them that right is unjust, but, all things considered, their situation is justifiable. But what is the advantage of that approach? It seems just as useful to say that the rule denying them that right is just, and they are being treated justly. I agree (and point out in the book, citing Brad Hooker’s work) that following a just norm could at times lead to unjust outcomes, but that possibility does not make the norm unjust.

Thin Justice as Too Conservative or Apologetic for the Status Quo

Last, I’d like to address the charge that my vision is conservative or privileges the status quo, a point made in various ways by Peters, Hessler, Mégret, and Howse. It’s interesting that, when I ran the title of the book by several philosophers, they thought it was too negative and left the impression that international law was less just than I had shown, so I have heard responses in both directions. Some of the criticism seems based on my decision not to make this a book about distributive justice alone. Both philosophers (like Thomas Pogge) and international lawyers (like Margot Salomon) have made the international economic order the focus of their inquiry, and I reiterate the point made in the book that I completely agree that from the perspective of distributive justice alone, international law has a long way to go.

At the same time, it is critical to my approach that the worst effects of unjust distribution are captured in my second prong, in that basic human rights include basic economic rights. So, to the extent that the norms of trade and investment law interfere with those rights (for example, the right to food), they would be unjust as a matter of thin justice; I’m just not prepared to say that they do based on my reading of the decisions of the WTO and investment tribunals. Others may interpret those decisions differently.

The charge of conservatism also misses three points. First, the book finds norms unjust in serious ways—for example, certain aspects of sovereign immunity, the unrestricted veto of the P5 (as well as the composition of the states enjoying the veto), a claimed blanket ban on unauthorized humanitarian intervention or on any aid to rebels fighting a regime committing atrocities. Much needs to change to make those norms just. And I identify trends in trade and investment law decisions that call for a great deal of vigilance over those problematic institutions interpreting that law. Second, the book assumes the existence of a robust body of human rights law aimed at improving individual welfare beyond basic human rights. Such a body of law is more than thinly just and must remain so. But it also means that we need not expect all of the other norms of international law to do the work of human rights law in order for those norms to be (thinly) just.

Third, my last chapter offers an aspirational approach reflecting on how international law could meet a thicker standard of global justice. I suspect many international lawyers would regard an insistence that norms advance all human rights in a way that does not interfere with peace to be quite idealistic (even if it is not the “dream[ing]” that Howse desires). D’Aspremont calls this final chapter the “escape from [my] self-imposed empirical cage,” and it was where I saw the need to defend a bolder vision for international law. So we should make the move toward thicker justice, but do it in a way that does not sacrifice the thin justice achieved, a point I think some proponents of restructuring discount. Obviously, we need to debate whether achieving thicker justice will indeed endanger thin justice. Many progressive changes (especially in the economic area) pose no such risk—consider how states now seem to agree that a rule allowing states to exercise universal jurisdiction over certain crimes does not per se endanger interstate peace.

To return to my point in the first paragraph, I would ask those who see the book as too oriented toward the status quo to identify those norms where they disagree with my assessment. The ban on the use of force? A very narrow ground for secession? The sovereign equality of states in lawmaking and law application? The admission of all states to the UN? The permissive rule of universal jurisdiction? The requirement that states taking police action abroad respect human rights? And I’d like to debate how various alternatives to those norms fare as well. So I look forward to future discussions about both my theory and my conclusions about the norms that we have and those that have been proposed to replace them.


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

Leave a Reply

Your email address will not be published. Required fields are marked *