All posts by Colleen Murphy

The Nexus among Peace, Justice and Human Rights

Colleen Murphy is a Professor in the College of Law and the Departments of Philosophy and Political Science at the University of Illinois at Urbana-Champaign, Director of the Women and Gender in GlobalPerspectives Program in International Programs and Studies, and Affiliate Faculty of the Beckman Institute


In his ambitious book, The Thin Justice of International Law, Steven Ratner offers a reconstruction and justification of the notion of justice underpinning existing international law. Ratner’s interlocutors are both international lawyers and political philosophers, groups whose research provides critical resources for his project and yet whose relationship is characterized by “mutual ignorance and suspicion.”[1] Such ignorance and suspicion are unfortunate in Ratner’s view. By failing to engage with international law, philosophers often provide prescriptions that are based on mistaken understandings of the current state of the law; and propose alternatives that, if implemented, would have detrimental foreseeable consequences. By ignoring normative questions, international lawyers fail to take a sufficiently critical stance to existing legal norms and overlook the fact that all areas of law reflect a conception of justice, a conception that stands in need of justification and can be rightly subject to critique.[2]

Global justice Ratner understands broadly as concerning the “process or outcome that assigns rights and duties to global actors so that it is clear what each such actor is entitled or required to do or have.”[3] The specification of rights and duties occurs via the legal norms and rules constitutive of international law. [4]  To count as just, such norms must be justified according to impartial reasoning, so that the equal standing of all individuals is recognized.[5] The impartial form of reasoning he adopts is ultimately consequentialist reasoning, which judges principles in terms of the state of affairs they produce.[6] Legal norms and rules are just if assignment is such that meets the substantive standard of justice justified on such consequentialist grounds, though there are “deontological concepts superimposed at points on that model” as well.

The two ‘pillars’ against which Ratner ultimately evaluates the justice of particular legal norms and rules are peace and human rights. International law rules are just if they promote peace and do not undermine basic human rights.[7] These pillars provide standards by which we could argue for change in international rules; changes are justified if they would further advance peace or reduce interference with basic rights in a manner that is feasible to implement, given existing institutions, and if such changes would comport with norms of the rule of law and procedural fairness. Ratner goes on to then demonstrate how we see this pillars reflected in norms regarding self-determination, secession, and global trade.

This book is quite extraordinary in the breadth of terrain covered, rich, and rewarding. In my post, I want to focus on the two pillars. It is not clear to me that there are in fact two distinct pillars that underpin the conception of justice Ratner advances and, if there are, the relationship between the pillars is different than what Ratner states.

My uncertainty about the existence of two distinct pillars stems from Ratner’s definition of peace in Chapter 3. There Ratner argues that peace matters because of what violence entails: death, injury, displacement, sexual violence, refugee populations, the collapse of educational and health systems, animosity, distrust and poverty.   As this list makes clear, war and violence undermine the welfare of individuals and communities.   In Ratner’s own words, “War has unparalleled catastrophic consequences for overall human welfare…war undermines the possibility of people to live decent human lives.”[8]

Peace is the absence of violence at both the intrastate or interstate level. The absence of violence is compatible with the presence of conflict; the key is that conflict is resolved in ways that do not involve physical coercion in order to secure agreement. As Ratner writes, “A just world is one where states, peoples, and individuals settle their differences with minimal recourse to physical coercion- although certainly a just world permits coercion, at least by the state, in response to certain violations of the law.”[9]

Not all violence counts as inimical to the peace that is the pillar of international law. Ratner focuses on a particular subset of violence, namely, personal, organized violence. “Personal” violence is contrasted with and used to exclude structural violence. Citing Johan Galtung, Ratner seems to understand structural violence as a product of institutional rules that may harm or disadvantage individuals in terms of their life prospects; institutionalized racism could count as an example of structural violence. The contrast is with individual actions, via physical coercion, leading to harm and the consequences of war listed above.

Such violence, however, is not uncoordinated but “organized”; indeed the violence of war is frequently organized and carried out by state actors or groups fighting the state.

Ratner’s justification for focusing on a sub-set of violence that is personal and organized is puzzling. Peace as a pillar is taken to promote aggregate welfare. It is justified on classic consequentialist grounds. Ratner recognizes, as consequentialists do, that such peace is compatible with particular individuals suffering. He also states that peace is not the same as respect for human rights; were it identical a second pillar would not be needed. So defined, peace should be compatible with state repression aimed at preventing the onset of conflict. The state is authorized to use coercion in the name of enforcing laws, and Ratner does not limit this permission when defining peace to the enforcement of just laws or laws that substantially respect human rights. So repression, even if regrettable from a human rights point of view, should be compatible with peace as he defines it. Yet Ratner states that organized violence includes “’peacetime’ purges of political opponents or manmade famines,” the death toll for which in the twentieth-century is estimated to be 167 to 188 million.[10]

The inclusion of peacetime purges and manmade famines is at odds with Ratner’s general picture. Empirically, purges of political opponents need not necessarily have the devastating consequences on overall welfare that Ratner attributes to war. When organized, targeted and especially when officially denied, there may be dramatic reductions in welfare for individuals but there need not be for communities. There may be no significant displacement, no closing of schools or health infrastructure, and no widespread distrust that results, especially if the group targeted is an unpopular minority.

Conceptually, famines are more plausibly seen as instances of structural rather than personal violence. During periods of famine no individual may be necessarily physically inflicting harm on another or physically depriving individuals of food; famines, as Amartya Sen’s work shows, are a product of the structure of rules for access or entitlements to food.[11] An empirical point could be made about famines and other forms of structural violence as well: their overall welfare reducing consequences are arguably much greater in many cases than the welfare reducing consequences of warfare. Tens of millions are affected by paradigm cases of warfare intra or interstate, but billions live in poverty that has structural roots.

More needs to be said, then, for the rationale for defining peace in a way that excludes structural violence but yet includes purges and repression. Ratner may reply that this is the best way of understanding the notion of peace underpinning international law, but even so we need to know why that conception is conceptually sound. The conceptual clarification for which I am pressing matters practically as well as theoretically. Insofar as we are to evaluate international legal rules on the basis of which they promote peace overall, it is necessary to be clear on what peace entails. Only then will we be in a position to make the consequentialist calculation as to the comparative welfare advantage of having one system of rules versus another, or the comparative advantage and risks of a proposed modification to the international legal order.

Another puzzling claim in tension with the picture laid out is that Ratner states that the first pillar “does not insist on rules that would tolerate what might be called an unjust peace or forbid a just war.”[12] This raises the question of the relationship between the first and second pillar. Strictly speaking, the first pillar does seem to permit an unjust peace, if injustice is treated as a function of how individuals are treated. Insofar as an unjust peace is impermissible, it is not because foreclosed by the first pillar. Rather, this is part of the reason for the necessity of the second pillar. Human rights matter because of their emphasis on the dignity of individuals, and the claims of individuals that should be respected even when that is not the most efficient way of promoting overall welfare. The inclusion of human rights by Ratner seems to be driven by recognition of the limits on consequentialist theories to sufficiently recognize the distinctness of persons when evaluating states of affairs.

Indeed, Ratner himself implicitly recognizes the above when he writes, “international rules under which some individuals suffer but whose overall consequences are to reduce the prospect of war, so that overall welfare is maximized, are just- up to the point where they run into the second principle discussed later.”[13] But this way of framing the relationship calls into question whether the two pillars of international law are equal. Rather, the first pillar, that of peace, seems to be driving the analysis and enjoys a certain priority. Human rights are more properly seen not as a distinct pillar to be promoted but rather as a constraint, delimiting the appropriate ways of pursuing what is in fact the primary pillar or objective of international law: peace.

 

[1] Steven Ratner, The Thin Justice of International Law: A Moral Reckoning of the Law of Nations (New York: Oxford University Press, 2015), at p. 19.

[2] Ibid., p. 2.

[3] Ibid., p. 45.

[4] Ibid., p. 46.

[5] Ibid., p. 56

[6] Ibid., p. 62.

[7] Ibid., p. 64.

[8] Ibid., p. 67

[9] Ibid., p. 66.

[10] Ibid., p. 67.

[11] Amartya Sen, Poverty and Famine: An Essay on Entitlement and Deprivation (New York: Oxford University Press, 1983).

[12] Ratner, Thin Justice, p. 66.

[13] Ibid., p. 70.