BOOK PREVIEW [coming May 2017] Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue. Chapter One: General Structure

Sovereignty Conflicts and International Law and Politics

A Distributive Justice Issue

By Jorge E. Núñez

Previously:

About the Book

BOOK PREVIEW: Chapter One: Introduction.

Chapter One

General structure

To evaluate the potential for using principles of distributive

justice to resolve certain kinds of sovereignty conflicts, 

the monograph is divided into three Parts.

The First Part

The First Part—i.e. Chapters One and Two—includes 

discussion on two preliminary potential pitfalls to this project 

that is the use of Rawlsian methodology and the use of the 

concept of ‘sovereignty’. Chapter One, the Introduction, 

presents some simplifying assumptions and the 

basic elements that constitute this study and in 

particular goes through the critical discussion on 

Rawls methodology in order to justify its application.

Chapter Two will address a key task in developing the 

new approach: to examine if the concept of 

‘sovereignty’, which is assumed by many to be absolute, 

can be (and in fact, actually is) limited. This Chapter 

follows two lines of analysis: a) conceptual; and b) historical.

The Second Part

The Second Part—i.e. Chapters Three, Four, and Five—

introduces and explores the current state of affairs in 

international law and politics in terms of conceptual elements 

and potential remedies to sovereignty conflicts.

Chapter Three will focus on assessing the need for a revised 

‘shared sovereignty’ and will review different ways in which 

this concept (in various versions or conceptions) and similar 

ones have been previously applied in legal and political 

scholarly literature.

Chapter Four will examine self-ownership as a way to define 

sovereignty. More precisely, if it can be established that 

sovereignty may in theory be limited and the need of a 

revised ‘shared sovereignty’ the next step will be to evaluate 

how sovereignty can be shared—i.e. how a State can limit 

itself by sharing its rights and obligations and still remain 

sovereign.

Chapter Five highlights the main remedies applied at 

international level to sovereignty conflicts and will explore 

each in order to determine whether any of them could be a 

reasonable solution to the sovereignty conflicts discussed. 

What this Chapter will argue is that there is a need for a 

reasonable solution that the reviewed international remedies 

cannot offer.

The Third Part

The Third Part—i.e. Chapters Six, Seven, and Eight—will 

explore the use of Rawlsian methodology in order to put a 

solution to certain sovereign conflicts, and discuss if the 

outcome is a reasonable remedy for them.

Chapter Six will introduce and explore: a) the conditions for 

achieving justice—toleration, peace, etc.; b) why the ‘just 

acquisition’ principle may not work; and c) why the Rawlsian 

method of conceiving of the respective claimants as behind a 

‘veil of ignorance’ just might.

Chapter Seven will test the proposed model by working out 

what sorts of institutions and arrangements could, and would 

best, realise it. In order to do that this Chapter will make use 

of some sovereign conflicts to show that the model can be 

extended from the general principles to workable institutions 

that realise those principles in: a) population; b) territory; c) 

government and law; and d) all that they imply (e.g. 

defence, natural resources, financial system).

Finally, Chapter Eight will conclude by assessing the model’s 

potential and highlighting any possible limitations and 

implications.

More preview posts coming in January 2017.

Routledge PREORDER

BOOK PREVIEW [coming in 2017] Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue. Chapter One: Introduction.

Sovereignty Conflicts and International Law and Politics

A Distributive Justice Issue

By Jorge E. Núñez

Chapter One

Sovereignty conflicts as a distributive justice dilemma

Introduction

It is arguably a truism in international law and politics that an ultimate 

sovereign, with a common legal bond or system of norms, will govern 

one territory with population. What would happen if that one territory 

and population had two ultimate and hierarchically equal sovereigns 

(legally speaking) and, at the same time, two valid sets of norms? 

Would it be possible, for instance, that Israel and Palestine had sovereign 

authority at the same time over Jerusalem? Would it be possible that 

Argentina and the United Kingdom were at one time sovereign over the 

territory and population of the Falkland/Malvinas Islands? If the answer 

were positive, what would the consequences be—in terms of territory, 

population, government and law?

About the Book

Routledge PREORDER

John Rawls: A Brief Account

Rawls is interested in A Theory of Justice in exploring what social policies should be implemented.  He adopts a non-utilitarian position and he accepts a broadly liberal individualistic approach, in which liberty and rights are important. His starting point is a claim about justice, based upon which we can work out how rights are to be assigned.

The problem of distributive justice

Solving the problem of distributive justice is often thought to present a conflict between two competing values:

a)              one is the value of liberty or freedom, which tells us that the less government interference in our lives the better, or at least this is what many people claim it tells us

b)             the other is equality, which tells us that unless there is a good reason to do otherwise, the benefits and burdens of social cooperation should be distributed equally

But since in most cases the benefits and burdens of social cooperation are not distributed equally, this requires some and sometime government interference in our lives, hence the supposed conflict with liberty

Ronald Dworkin has an argument that this supposed conflict is illusory—that our interest in liberty is no more than that—an interest, while our interest in equality is in fact a right, and that to the extent we have a right to certain basic liberties, these stem from notions of equality, not liberty

For a notion of justice see:

Justice as a Virtue

For distributive justice see:

Distributive Justice

John Rawls’ A Theory of Justice

The circumstances of justice

One of the first points that Rawls makes is that questions of distributive justice arise only under certain circumstances—what David Hume called the circumstances of justice (see David Hume, A Treatise of Human Nature).

What are the circumstances of justice?

Limited resources and limited altruism.

Even if Rawls and Hume were both wrong about the circumstances of justice—we would still need principles of justice even under conditions of superabundance and unlimited altruism

Rawls’s criticisms of other theories of justice

Intuitionism

Intuitionism is the doctrine that there are an irreducible family of first principles (e.g. equality and freedom) which have to be weighed against one another in resolving questions of justice by asking which balance, in our considered judgment, is most just.

Utilitarianism

Utilitarianism avoids the priority problem by using the single criterion of the principle of utility

but Rawls criticizes utilitarianism on two grounds: it gives the good priority over the right and it ignores the distinctness of persons

Reflective Equilibrium and The Contractarian Method

Rawls argues that they would in fact choose two principles, which together he calls justice as fairness

a.         The first principle is that people are entitled to the most extensive system of basic liberties compatible with a similar system for everyone else

b.        The second principle is that social and economic inequalities are justified only if:

1.     They are attached to offices and positions open to all under conditions of fair equality of opportunity, and

2.     They benefit the least advantaged, meaning that some lesser degree of inequality would make the least advantaged members of society even worse off, a principle that Rawls calls the difference principle

The first principle has lexical priority over the second, meaning that the first must be fully satisfied before you apply the second, and thus you cannot sacrifice any aspect of basic liberty in favor of greater social and economic equality

c.         And the first part of the second principle—the principle of fair equality of opportunity—has lexical priority over the difference principle, meaning you cannot sacrifice fair equality of opportunity for greater social and economic equality either

Note: the first principle protects only the specified basic liberties, not liberty in general

The basic liberties referred to in the first principle are political liberty, freedom of thought, freedom of the person, and freedom from arbitrary arrest and seizure.

What are the strains of commitment?

The strains of commitment are the reasons why a party might violate an agreement or urge renegotiation

If a party is likely to violate their agreement to be bound by the difference principle or urge renegotiation once the veil of ignorance has been lifted, the strains of commitment will be excessive and the principles of justice selected from behind the veil of ignorance will be unstable.