Global Justice and Due Process, Larry May (Cambridge: Cambridge University Press, 2011), 270 pp., $95 cloth, $32.99 paper.
Eric A. Posner (Reviewer)
In his latest book, Larry May argues that two rights—the right to habeas corpus and to non-refoulement—should be incorporated into international law as jus cogens norms. Habeas corpus, which is recognized in the United Kingdom, the United States, and a few other countries with U.K.-derived legal systems, is a legal procedure in which a prisoner can appear in court and challenge the basis of his detention. Non-refoulement is the principle that states should not deport aliens who are unlawfully on their soil if the aliens will be persecuted or abused in the state to which they will be returned. There is currently no right to habeas corpus in international law; most states have agreed to recognize limited rights of non-refoulement. Jus cogens norms are norms of international law that bind states even if they reject them, in contrast to ordinary international legal norms, which require states' consent. Torture, slavery, genocide, and aggressive war are generally thought to be on the list of jus cogens prohibitions, and it is to this group that May wants to add the failure to offer habeas corpus and the deportation of aliens to states where they are likely to be abused.
May's theme is that procedural rights are just as important as substantive rights, such as the right not to be tortured. Procedural rights carry both instrumental and intrinsic importance. Instrumentally, if people lack procedural rights, then the government can more easily violate their substantive rights. A right not to be tortured or arbitrarily arrested is of little value if the government puts you in a dungeon where no one can see how you are being treated or can have access to you. By petitioning for habeas corpus, the detainee demands to be taken before a court, where he can allege torture, arbitrary detention, or other violations of his substantive rights, and thus win release if he can successfully persuade a judge. Procedural rights help ensure that government actions are brought to light where they can be reversed by judges, or that they are at least exposed to the public, which may bring pressure against the government. May similarly argues that nonrefoulement is an important right because it prevents states from violating the spirit of the rule against torture by sending detainees to other states where they will likely be tortured.
May claims that in international law procedural rights (which lawyers call due process rights) are not as important as substantive rights. But neither international nor domestic law treats procedural rights as subordinate to substantive rights. Procedural rights are central to the Anglo-American legal tradition, and of much longer pedigree than other rights that we take for granted, such as the rights to free speech and religious toleration. Procedural rights (though not habeas in particular) are also central to most foreign legal systems and to international human rights law. May is not satisfied with this. He seems bothered that some substantive rights enjoy jus cogens status, while no procedural rights do. And he wants to see the right to habeas corpus, the fusty Anglo-American legal procedure, embodied in international law. For reasons that are not clear, he is not satisfied with the relevant due process protections in other countries. Consequently, a large number of free and civilized countries, such as France and Germany, would presumably need to revise their legal systems so as to comply with Anglo-Saxon rules.
The main problem with May's proposal is that no one knows how much process is or ought to be due in the varying circumstances under which people are detained. There has been a great deal of controversy recently over the historical limits of habeas, but no one thinks it was ever universal. For example, no country with habeas corpus has made it available to enemy soldiers captured and held on foreign soil during wartime. And the U.S. Constitution permits Congress to suspend habeas corpus "in cases of rebellion or invasion." The consensus, such as it is, is therefore that habeas is limited and subject to derogation. And yet the essence of a jus cogens norm is that it is universal and non-derogable. A state cannot lawfully suspend the prohibition of slavery or genocide during an emergency, or institute slavery or commit genocide on foreign territory during a war.
May argues that habeas (and nonrefoulement) should be jus cogens because of its importance for liberty and the protection of substantive rights. But he undercuts this argument in the last chapter of the book, where he acknowledges that states must "balance" security and rights, which implies that habeas may be suspended or limited—contrary to the principle of jus cogens—whenever the balance tilts in favor of security. Even so, May ignores the main reasons jurists have given for judicial deference to the executive during war and other emergencies—that judges lack the information, resources, and legitimacy to second-guess military judgments. May argues that the benefit of the doubt should be given to rights because security is not worth anything if we do not have rights. But this position is too vague to address habeas in particular. States can suspend habeas without denying people all rights; indeed, enemy soldiers who are denied habeas are given other rights, including procedural rights.
Maybe May's best claim is that if states can agree not to torture even when governments might believe that an emergency might justify it, then states ought to be able to agree that the procedural protections that prevent surreptitious or hidden torture should not be suspended even when an emergency might seem to justify restrictions on traditional rights. The implicit calculus is that either torture is never justified or that it is so rarely justified that the gains from permitting it are less than the risks of abuse. However, it may also be the case that states could agree to the ban on torture in the first place because they knew that they would be able to evade it in extreme circumstances when they believed it was justified for national security. If this escape hatch were closed, then they would be tempted to water down substantive protections from torture, arbitrary detention, and other security tactics. Given the continued ubiquity of torture and arbitrary detention in so many states, this latter possibility seems more plausible.
The simple fact is that states frequently violate human rights norms, including jus cogens norms. Many commentators have sought institutional solutions to this problem, and May joins this group. Claiming that it would be possible to create a global court in which victims of habeas and non-refoulement violations could sue their governments ("in tort," which would be unprecedented in international law, which does not recognize torts) and win damages, he cites as precedent a hodgepodge of international institutions—the International Criminal Court, the UN Human Rights Council, and so forth—without explaining how his court would overcome the significant problems of distrust and bias that have rendered them largely ineffective. In May's book the chief obstacles to the vindication of human rights are the United States and Australia. There is no mention of China, Russia, Iran, North Korea, Vietnam, or Pakistan—that is, most of the world outside Europe, which he seems to expect, without providing any justification, to go along with a proposal for international legal reform that is foreign to, and inconsistent with, their systems of political control.
May and other philosophers have written illuminatingly about global justice, but their proposals for institutional reform frequently come across as naïve. Proposals for institutional reform require the same analytic rigor as do efforts to answer moral and conceptual questions. Greater attention to historical evidence and empirical social science on the theory that "ought implies can" would go a long way to improving this literature, and making it more useful for policy-makers.
—ERIC A. POSNER
Eric A. Posner is Kirkland & Ellis Professor of Law at the University of Chicago.