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The International Rule of LawRise or Decline?$

Heike Krieger, Georg Nolte, and Andreas Zimmermann

Print publication date: 2019

Print ISBN-13: 9780198843603

Published to Oxford Scholarship Online: September 2019

DOI: 10.1093/oso/9780198843603.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 29 March 2020

Global Justice, Global Governance, and International Law

Global Justice, Global Governance, and International Law

Comment on Eyal Benvenisti

Chapter:
(p.364) 23 Global Justice, Global Governance, and International Law
Source:
The International Rule of Law
Author(s):

Maurice Kamto

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198843603.003.0023

Abstract and Keywords

The chapter comments on Eyal Benvenisti’s discussion of international law’s contribution to global justice. It puts forward that global justice at the international level can only be the result of a permanent bargain and a compromise between the multiple and conflicting interests among states. It emphasizes that better governance at the global level involving the sharing of the policy-making and decision-making, accountability, the rule of law, and sanctions can help improve global justice. It concludes by suggesting that if international law could contribute to the advent of global justice in a move from ‘Responsibility to protect’ to ‘Responsibility to develop’, it would open a new era for its rise amongst nations and peoples.

Keywords:   global justice, representation, international institutions, resources, redistribution

Professor Eyal Benvenisti’s chapter on ‘International Law’s Contribution to Global Justice’ is undoubtedly a thoughtful piece on international law, which aims at ‘seeking ways and means to reducing inter- and intra-state conflicts and promoting human welfare, given existing political, social and economic constraints’. The chapter goes beyond the classical positivist approach of international law based on commentary of treaties’ provisions and case law, and assesses ‘what principles of international law are conducive to global justice’ in an unbalanced international community dominated by a few actors, whether states or ‘private power’. It is an accurate picture of the contemporary development of international law that appears to have a negative impact on global justice, but also a potential positive contribution to such justice.

It seems that the perspective of the chapter is more regarding international law than regarding moral philosophy, which would have been the classical approach to global justice by most philosophers and sociologists. In this regard, one could ask whether Kant believes in an evolutionary process towards perpetual peace where global justice considerations could be considered as being achieved—obviously, not. One could have expected the realization of Kant’s prophecy after the crumbling of former Soviet Union and the amazing prospects of liberalism with freedom, democracy, rule of law, and well-being for all. That has not happened, meaning that Kant had somehow ignored the very nature of human beings, which determines, in the end, the behaviour of nations. I think that global justice at international level can only be the result of a permanent bargain and a compromise between the multiple and conflicting interests among states.

The approach of the topic depends largely on the definition of global justice.

Justice is assumed to be a fundamental value of every organized or civilized society. At the same time, each society defines for itself its concept of justice, which reflects the state of development, culture, and civilization of that society. The idea of justice is not unknown in international law. But, how does it come into being? If, like in any politically organized society, it is contained in the basic law of the land, is it severable from international politics?

(p.365) Different views of what justice is have been given in the course of history, in different cultural contexts and disciplines, including in legal theory. Carlo Focarelli, for instance, in his book titled International Law as Social Construct: The Struggle for Global Justice after a lengthy consideration of the concept of justice, defines it as ‘the protection of the most vulnerable whoever they may be at any time’.1 This is obviously a very narrow definition of justice, whether at the national level or at the international level.

In my opinion and that of Eyal Benvenisti, the term ‘justice’ is used in a broad sense, encompassing social, economic, and political justice. Since the rule of law is employed in the pursuit of justice, legal justice is the bedrock of social, economic, and political justice. As a result, various forms of justice must derive their legitimacy from, and rely on, legal justice, which is an instituted and commonly accepted way of achieving justice. In turn, legal justice must reflect the principles of natural or moral justice to save itself from the harshness of positivism. Given the diversity of legal systems, however, there might be other understandings of justice, particularly at the international or transnational level, despite the fact that we are living in a globalized society.

If justice is about values, can we deal with it without a prior answer to the question of whether commonly accepted values exist in the international order? From the legal perspective, the idea of justice presupposes the existence of such common values, as has been said for, it contains ‘some legal dos and don’ts with scope for the evolution of new legal oughts’.2 It requests the presence of fairness, reasonableness, and equity which together work to reflect a sense of justice. The absence of arbitrariness, bias, and prejudice paves the way to the goal of justice, which ‘is an ultimate outcome and a recurring feeling of satisfaction for a person who wants his or her legal rights protected, legitimate expectations met, and development aspirations alive’.3

Since the understanding of the concept of justice is considerably influenced by culture and civilization as well as domestic law experience and expectations, it is likely that one perceives global justice from one’s cultural or national perspective. As a result, cultural relativism and national perspectives accompany the concept of global justice. All the more so because justice is about values, and although it has become a routine to talk of common or shared values of the international community, such values are not that many, or are yet to be established. However, there is at least one thing in common, namely, the role of law. Even this commonality becomes insignificant as soon as a justice-seeker loses hope in the law’s effectiveness. In other words, the concept of global justice is based on the assumption that there is an international community with common values and with common interest in the realization of such values.

With regards to the concept of ‘global justice’, the key questions raised in the chapter are: Can or should international law contribute to global distributive justice? Can and (p.366) should international law assist in creating the conditions that would enable the transformation of the debate about global distributive justice from the philosophical to the political dimension?

Benvenisti’s humanist perspective in answering these questions appears right at the beginning of the chapter. Contrary to most lawyers who regard ‘questions about the nature and scope of obligations that individuals, states, and international organizations in the affluent “North” have toward the less privileged individuals in the “South”, and in general whether nations should regard the human flourishing of strangers as a matter of concern [for] political deliberation’4 and not as a matter for international law, Benvenisti wishes ‘to highlight the role of institutions and decision-making procedures in promoting—indirectly—global (and domestic) distributive justice’.5 His essay focuses ‘on institutions and processes at the global level’ and ‘is grounded on the assumption that questions of the just allocation and reallocation of resources are ultimately resolved through processes of public deliberation or open contestation (including the involvement of courts). Therefore, the question is whether law can be instrumental in ensuring the conditions for open deliberation and contestation. While focusing on the limited opportunities of politically weaker constituencies to engage effectively in such interactions, I will suggest that the task of the law is to provide them with meaningful voice to more effectively stake their claims for global justice in the various decision-making fora.’6

In my view, international law cannot be opposed or even severed from the political debate in this context. It is part of that debate. For instance, the controversy raging in Africa on whether African states should exit from the International Criminal Court is a political debate on an international law issue, which requires international consideration for a possible political decision on that issue.

On substance, the chapter exposes the ambivalence of international law vis-à-vis global justice: From the ‘negative contribution of international law to global justice’—in so far as ‘it contains/nourishes the contributing factors to the diminishing human agency in the public space which converge to pre-empt deliberation on global (and domestic) justice issues that could have turned the philosophical debate to a political one’,7 to the ‘potential positive contribution of international law to global justice’ through discipline of accountability, judicial (and other) review, access to ‘private’ big data, development aid with respect to the data, information, knowledge axis.8

The chapter touches upon so many areas that it would be difficult to make observations on each of them in these brief remarks. Henceforth, I will limit myself to some observations on some key points of substance:

(p.367) The essay touches upon the issue of governance, particularly the concept of accountability, which, in my opinion, is one of the main pillars of governance. One would have expected the author to elaborate more specifically on the concept of global governance, which is directly related to global justice, whatever the meaning one might give to this concept. In this regard, consideration could be given, notably, to the following issues:

  • international sanctions regimes which appear to be a means of pressure or domination in the hands of the most powerful nations against the others, and which, in some cases, lead to global injustice in so far as it is easy to put a person or a state on the list of sanctions but rather difficult to drop him or her from that list. The mechanism for the settlement of disputes deriving from such situation is yet to be established at international level;

  • the management of international sports activities, where both the law and the institutions, on the one hand, and the dispute settlement mechanisms, on the other hand, are ‘private’, as they have not been set up by states, although the latter are abided to some extent by the laws and decisions of these institutions;

  • the cyberspace, especially the internet world, which is still under the domination of some private actors and one or very few governments. The internet law and justice are yet to be established. This is clearly a field of global governance with such unbalanced rules, skills, and technology gaps amongst nations that global justice is looked at as an unaffordable goal. Or, the global governance of our world, which wants to believe that there are some common values shared by all nations and peoples with a common destiny, cannot be abandoned to some individuals and a handful of nations, if not a single one. Global justice commands that a global space, like the cyberspace, be managed in the common interest with the involvement of all the nations;

  • lack of international justice for the victims of serious crimes by United Nations officials and global non-governmental organizations on mission and impunity of the perpetrators, inter alia, because of lack of convenient fora and immunity.

It seems to me that better governance at the global level involving the sharing of the policy-making and decision-making, accountability, the rule of law, and sanctions, can help improve global justice. Likewise, the development of a global law, conceived as a new legal order in which domestic law is more connected to international law can strengthen global justice, in as much as it would leave no legal vacuum, which usually benefits the powerful governments or nations. In this regard, it is worth reflecting on the relationships of global governance and global justice, and of global law and global justice.

Another expectation was to see how global justice could also be achieved through the access of individuals to international justice, or the international access of individuals to justice.

(p.368) The global moral perspective of the chapter is rightly concerned by the fate of ‘the weak and disregarded’. In the same vein, Eyal Benvenisti’s claim ‘is that international law can play a role in the political empowerment of weak constituencies (within and between states). In doing so, international law can indirectly shape the distribution and re-distribution of resources, which would be more dignified and preferable to handing them charitable contributions.’ There is a good share of moral idealism in such opinion. Indeed, the author ‘briefly argues that it is the current global political-legal structure that inhibits the political process by which global justice considerations could be argued, weighed, adopted, and implemented’.9 He ‘will then suggest that international law could be part of the solution for those seeking to promote any version of global justice, emphasizing the link between access to data, information, and knowledge as key to participation and voice, necessary for effective political voice’.10

One can only agree with the criticism of the author, namely when he focuses on the dependency of the beneficiaries on aid and on other forms of humanitarian assistance aimed at introducing some justice in the world, and on the fact that the power of decision-making in this domain remains in the hands of the aid providers. All the same, this world redistribution of assets ‘ignores the right to individual and collective self-determination of the beneficiaries’. It is more so because ‘the assets-redistribution approach is unnecessary for achieving a more just allocation of resources and opportunities’.11

The progressive development of international normativity has paved the way for the enrichment of the concept of justice in the international order with the setting up of several new normative standards. For instance, in the field of the environment, the principles of climate justice, common but differentiated responsibilities among states, and intergenerational equity have emerged to take into account not only the inequalities of development, but also the need for anticipatory action by present generations vis-à-vis future generations, which also ensure the continuity of human civilization.

Eyal Benvenisti’s chapter sometimes revives old debates, and sometimes opens new avenues on topics like power among nations and global justice; complexity of the international order, notably conflicting norms deriving from that complexity and global justice; imbalance of wealth among nations and global justice; information era and global justice. In this regard, it looks like a starting point for a more theoretical reflection on contemporary international law. Two of the most important questions are: Is global justice possible in a complex international community with divergent national interests, imbalance of powers, small number of shared values, and the sentiment of domination or exclusion by poor nations? Can global justice be conceived and achieved through a single paradigm, encompassing, inter alia, international criminal (p.369) justice, international economic justice, international human rights justice, and inter-state justice?

If international law could contribute to the advent of global justice in the main fields of community interests and global governance, including power-sharing in decision-making and allocation of global wealth, in a move from ‘Responsibility to protect’ to ‘Responsibility to develop’, it would, no doubt, open a new era for its rise amongst nations and peoples. (p.370)

Notes:

(1) Carlo Focarelli, International Law as Social Construct: The Struggle for Global Justice (Oxford University Press 2012) 60.

(2) Yogesh Tyagi ‘The Access of Individual to International Justice: Constraints and Corrections’ (Report of the English Speaking Section) in Maurice Kamto and Yogesh Tyagi (eds), The Access of Individual to International Justice (Centre of Research in International of the Hague Academy of International Law 2015, Brill forthcoming).

(3) ibid.

(5) ibid.

(6) ibid.

(7) ibid III.

(8) ibid IV.

(9) ibid I.

(10) ibid.

(11) ibid II.