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Restitution

INTRODUCTION

As belligerents turn their mind to ending the war, attention must be paid to reconstructing what has been destroyed, restituting what has been wrongfully taken away, and compensating victims for injuries to life, limbs, and property. The questions thus raised come under the following headings:

Corrective justice. (1) A has taken from B a good g which was in B’s de facto possession. When, if ever, is A under a duty to restitute g to B? (2) A has destroyed g. When, if ever, is A under a duty to pay reparations to B for her loss by giving her the equivalent of g and, if B has incurred further harm as a result of As act, by making good for that harm?

Distributive justice. (1) A has destroyed g, as a result of which B has incurred further harm. A is unable or unwilling to make good on that loss. When, if ever, is C under a duty to step into the breach and help B? (2) Individuals who were neither party to the war nor affected by it do not have prospects for a flourishing life. When, if ever, is C under a duty to help them, at the expense of failing to meet B’s reparative claim?

Although there has been an enormous amount of work on corrective and distributive justice in general, relatively less has been said in the contemporary literature on post-war corrective and distributive obligations.[1] In this chapter, I focus on one aspect of post-war corrective justice, to wit, the restitution of what belligerents have taken from one another in the course of the war. I leave the issue of reparative and distributive obligations until the next chapter.

Belligerents routinely appropriate their enemy’s publicly owned resources, materiel, and territory, as well as their privately owned resources. The question is whether a belligerent which has taken property in the public and/or private de facto possession of its enemy is under a duty to restitute it once the war is over. Pace the maxim ex injuria jus non oritur, in virtue of which injustice cannot confer legal entitlements on its perpetrators, we shall see that the restitution of what was wrongfully taken, though often an important component of a justifiedATC peace settlement between belligerents, not only is not always a necessary condition for it but also is, at least sometimes, unjust.2 Moreover, we shall also see that a justifiedATC peace may also sometimes require the restitution of what was rightfully taken during the war. I defend those two conclusions by considering three cases: the restitution of publicly and privately owned moveable property (s.5.3), the return of territory (s.5.4), and the return of displaced individuals to their homeland (s.5.5). Throughout, I highlight feasibility constraints on the implementation of restitutive principles and suggest all-things-considered justified alternatives. Beforehand, however, I sketch out a cosmopolitan account of individuals’ property, sovereignty, and occupancy rights—on which the ensuing account of restitutive justice after war rests (s.5.2).

In keeping with the book’s overarching aim, I tackle this issue from a cosmopolitan perspective. At first sight, one might think there can be no such thing as a cosmopolitan theory of post-war restitution, for cosmopolitan justice pertains to individuals’ general rights and duties—that is to say, the rights and duties which they have against and to one another qua human beings, irrespective of borders. By contrast, restitutive rights and their correlative obligations are grounded in the special relationship which unites soon-to-be-erstwhile belligerents. However, cosmopolitan justice does have a lot to say about restitution, for in so far as corrective justice regulates what should be done when individuals’ rights are violated or justifiably infringed, it presupposes an account of what those rights are and is thus parasitic on non-corrective principles of distributive justice.[2] [3] If only for that reason, cosmopolitan considerations shape what is owed in restitution.

Three remarks before I begin. First, my aim is not to provide a normative account of wartime seizures in general,[4] but to delineate the grounds upon and conditions under which that which was taken must be returned once the war is over. I do so on the assumption (crucially) that belligerents have reached the point where continuing with the war would be unjust, such that they are under a duty to negotiate a peace settlement.

Second, I seek to discern what constitutes such a peace as negotiated by erstwhile belligerents and other parties affected by the latter’s conflict, with respect to restitutions. As we saw in ch. 4, we must distinguish the declarative from the specifying and creative functions of peace agreements. Here, I offer an account of post-war restitutive justice whose central tenets are justified independently of the fact that they may be agreed upon by such an agreement. As we shall see, however, there are moral constraints on the ways in which signatories to a peace treaty may specify restitutive rights and obligations, particularly in so far as their restitutive decisions (notably with respect to the retrocession of territory) adversely affect future generations. In that sense, the chapter both defends specific post-war restitutive principles and illustrates my earlier account of peace agreements.

Third, I often use simple one-to-one cases to articulate and buttress restitutive principles before applying the latter to war. If we cannot provide a justification for restitutive duties in those simple cases, we have very little hope to do so in the infinitely more complex case of war. Besides, the harms of war are not merely incurred by individuals qua members of belligerent communities (or indeed, qua members of communities which are not implicated in the war but which nevertheless suffer from its consequences): they are also—in fact mainly—incurred by individuals qua individuals, whose lives are lost, limbs shattered, and livelihood destroyed. Although an account of post-war restitutive rights and obligations must attend to the collective dimension of war, it must also pay attention to its individual losses and sufferings.

  • [1] Notable exceptions are E. Barkan, The Guilt of Nations: Restitution and Negotiating HistoricInjustices (New York: Thornton, 2000); Bass, ‘Jus Post Bellum’; May, AfterWar Ends', Orend, The Moralityof War.
  • [2] The maxim found its best known articulation in US State Secretary Henry Stimsons warning toJapan that the US would simply not recognize the latter’s 1931 forcible annexation of Manchuria. Foran exposition of the doctrine, see Neff, War and the Law of Nations, 295—6.
  • [3] For illuminating discussions of the complex relationship between corrective justice and distributive justice, see D. Butt, Rectifying International Injustice—Principles of Compensation and RestitutionBetween Nations (Oxford: Oxford University Press, 2009), ch. 2; C. Kutz, ‘Justice in Reparations: TheCost of Memory and the Value of Talk’, Philosophy & Public Affairs 32 (2004): 277—312, at s.V. Theclaim that corrective justice is parasitic on distributive justice does not entail that it has no independent moral force. Jules Coleman, for example, agrees with the claim of parasitism yet holds that thepoint of corrective justice (when it attends to economic wrongs) is to improve efficiency, which givesit such force. (See J. L. Coleman, Risks and Wrongs (Oxford: Oxford University Press, 2002), 348—54.)I am agnostic on this particular point.
  • [4] See, e.g., Grotius, Commentary on the Law of Prize and Booty.
 
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