GLOBAL JUSTICE, INTERNATIONAL LAW, and the WANING SIGNIFICANCE of NATIONAL SOCIETIES
By: Gerald F. Witherspoon, Sr. 20141218
International law is essentially a construct intended to enhance the prospects for international peace between and among states. The principle of sovereignty speaks to the notion of individual states reserving the legal right to govern their own affairs, that is, within their own domestic jurisdictions. It goes without saying that not all states have adhered to the same set of behavioral norms (not to imply that they should) and some have enjoyed greater levels of autonomy than others. That is, developed states, for the most parts, have exercised more freedom over their affairs especially in regard to moral independence than developing states (e.g., the number of interventions occurring in developing states). Interventions point to the inability or unwillingness of certain states to protect their citizens from insecurities that are deplorable to the global (but not all) community of states. They also elucidate how the global community of states must interact in matters that threaten the security of all and must arrive at certain guidelines, rules, or laws that are agreeable to the wider community.
There can be no international security without international justice (more recently referred to as global justice). Likewise, there can be no global justice when national societies are governed by judges who allow domestic prejudices to prevent global progress or a cross-fertilization of norms. More clearly, justice that is interpretable on a global scale is more important in an era of globalization than international agreements amongst states A, B, and C that may undermine the security or rights of states X, Y, and Z. As in the case of the Asian financial crises where the ‘global’ standard of corporate bankruptcy law was established by U.S. bankruptcy law, the globalization of a domestic rule intended to achieve justice prevailed because of the economic and political power held by the U.S. (Fourcade and Salvesberg 2006). This is important to note because John Rawls postulated that parties in the Original Position (OP) will prefer “Justice as Fairness” and a political conception “is of course, a moral conception” (Internet Encyclopedia of Philosophy 2014). If global politics have evolved through the process of globalization to embody political morality, then moral, political, legal interpretations should not be relegated to the prejudicial preferences of national societies. Further, cooperation becomes a matter of necessity despite the fond tendency to maintain an independence of sovereignty or dominate the international legal domain. To that accord, national societies have lost their relevance as the moral watershed of justice because it is increasingly unacceptable or considerably not “just” to allow the moral norms of one jurisdiction to override those of the wider community of states.
States do, however, continue to demonstrate self-seeking motives and strive for power and norms are not always distributed in congruence with justice and fairness. Stronger states are not always fulfilling their duty to the weaker states and in order to achieve more just conditions, national philosophies must be merged into universal legal philosophies agreeable to all. Essentially, national boundaries become less and less significant in the name of global justice.
Although national courts may draw inspiration from foreign laws, they would not do so to, per say, acknowledge the foreign law as possessing the “right” answer (Johnson, Tolley, and Volcansek 2010). To do so would arguably allow for undue influence in domestic jurisdictions. Nevertheless, by refusing to engage in global jurisprudential dialogues the opportunity to dance in step with the wider international community (i.e., avoid decisions that might diminish international influence) would be negated. Justice is no longer entirely measured by the divided lines of moral opinions held by individual or national societies. It is increasingly constructed by transnational opinions anchored in cross jurisdictional analysis.
In Eastern Ukraine, for example, attacks continue despite a ceasefire agreement (Aloyo 2014). Amnesty International and Human Rights Watch have documented and reported that rebels have violated the laws of war. The indiscriminate killing of innocent civilians violates international humanitarian law, laws of war, and does not adhere to the international norm of responsibility to protect (R2P). As suggested by Dr. Earmon Aloyo, “The international community can make experts on the laws of war available to all sides of the conflict” (Aloyo 2014). This conflict presents an opportunity for the international community to demonstrate impartiality, leave political differences aside, and coalesce around a legal issue in the spirit of achieving global justice.
Aloyo, Eamon. Ukraine, Russia, and the International Community’s Responsibility to Protect. October 06, 2014. http://thehagueinstituteforglobaljustice.org/index.php?page=Commentary-Commentary_Articles-Recent_Commentary-Ukraine,_Russia,_and_the_International_Community%E2%80%99s_Responsibility_to_Protect&pid=176&id=293 (accessed December 18, 2014).
Fourcade, Marion, and Joachim J. Savelsberg. 2006. “Introduction: Global Processes, National Institutions, Local Bricolage: Shaping Law in an Era of Globalization.” Law & Social Inquiry 31, no. 3: 513-519. Academic Search Premier, EBSCOhost (accessed December 17, 2014). EBSCOhost (accessed December 17, 2014).
Internet Encyclopedia of Philosophy. John Rawls. 2014.
Jackson, Donald W., Michael Carlton Tolley, and Mary L. Volcansek. 2010. Globalizing Justice: Critical Perspectives on Transnational Law and the Cross-border Migration of Legal Norms. Albany, NY: State University of New York Press, 2010. eBook Collection (EBSCOhost).
Salvesberg, Marion Fourcade and Joachim. “Introduction: Global Processes, National Institutions, Local Bricolage: Shaping Law in an Era of Globalization.” Law and Social Inquiry 31, no. 3 (Summer 2006): 513-519.