Advancing Peace and Respecting Basic Human Rights? A Narrow Moral Appraisal of International Law (Review Essay of Steven Ratner, The Thin Justice of International Law: A Moral Reckoning of the Law of Nations (Oxford University Press, 2015))

Abstract

International lawyers and international relations scholars certainly have a role to play, along with moral philosophers, in debates on global justice. The expertise of international lawyers could most obviously help to characterize existing norms in international law, thus providing a factual basis for a moral reckoning of international law. International relations theories, on the other hand, may help us to envisage realistic steps toward a more just international law. Thus, while ethical reasoning is necessary in order to identify standards of justice (the end goal), moral philosophy alone is unlikely to lead to relevant proposals for incremental steps toward a more just international law. Some forms of interdisciplinary encounter are necessary to identify deficiencies in international law or windows of opportunities for reforms.

Therefore, "The Thin Justice of International Law: A Moral Reckoning of the Law of Nations" is to be welcomed as one of a few recent attempts by an international lawyer to contribute to global justice scholarship. While evidencing the relevance of international law to the debate, this work also reveals the difficulty of the enterprise: identifying relevant ethical standards for a moral reckoning of international law. Steven Ratner’s methodology is based on the assumption that “[w]e can, without being circular, find justice in international law by applying a philosophical conception to legal norms, but also see the corpus of international law as saying something about what is just in the first place.” Thus, Ratner purports to show that “the core norms of international law … conform in major respects to a standard of global justice deserving of the name” – a standard that he also calls “decent.” This standard – the so-called “thin” justice of international law – is proposed as a “moral minimum,” which is “less dense, and certainly less demanding on individuals, than the justice needed for the governance of domestic societies” – and, in fact, much less ambitious than virtually any global justice theory. Even though Ratner’s monograph is a serious and interesting intellectual exercise, its conclusions rely entirely on an initial selection of “core” norms of international law and of a particular standard of justice.

The thin justice standard proposed by Ratner consists of two consequentialist moral norms or “pillars”: the advancement of international and intrastate peace, and respect for basic human rights. On these bases, Ratner submits that, “whether in changing an existing rule to meet the standard of thin justice or aspiring to a higher standard of global justice, we must remain aware of the risks to peace or human rights of alternative rules and not endanger what has been achieved to date.” The thin justice framework is intended to take into account some of the main constraints of existing international law – most explicitly the existence of states with unequal power – in order to identify realistic ethical demands and paths of reform toward a more just international law. However, because the two pillars are drawn from a set of norms that Ratner considers central to international law, it is unsurprising that most of these same norms generally conform to this standard, resulting in what Anne Peters qualified of “an ultimately overwhelmingly positive assessment of international law.” Only a few of the specific norms discussed by Ratner are possibly incompatible with the standard of thin justice, for instance the veto power of the five permanent members of the Security Council, the blanket ban on humanitarian intervention, and certain aspects of sovereign immunity.

Besides developing a general theoretical framework, Ratner’s monograph contains thorough discussions of prominent issues of international governance, such as humanitarian intervention or the liberalization of international trade, which could be read for their own sake. The present essay focuses however on the book as a whole, as a proposal for an innovative non-ideal theoretical framework which would serve to appraise the justice of international law in order to foster progress toward a more just international law (and the application of this framework). The following discussion first focuses on the relevance of the two pillars of thin justice; it then considers alternatives, in particular broader standards of justice, which could serve to a moral reckoning of international law; and it finally considers the normative implications of the standard of thin justice.