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International Affairs
July 1999
Recent discussions about globalization and increasing global inequalities of wealth have reawakened interest in the possibility of a just international order. The unequal distribution of wealth remains central to discussions of global justice but it is not the sole consideration. Additional issues are raised by the democratic deficit in international relations, the growing importance of cross-border harm, the need for cooperation to protect the environment and the treatment of non-human species. These different spheres of justice prompt the question of whether states can act as agents of reform, encouraged by the more progressive forces in global civil society. A related issue is whether the interplay between the states-system and global civil society will lead to more cosmopolitan forms of national and international law. Answers to these questions require new advances in normative and empirical inquiry.
Conventional accounts of justice suppose the presence of a stable political society, stable identities, and a Westphalian cartography of clear lines of authority-usually a state-where justice can be realized. They also assume a stable social bond. But what if, in an age of globalization, the territorial boundaries of politics unbundle and a stable social bond deteriorates? Can there be justice in a world where that bond is constantly being disrupted or transformed by globalization? This article thus argues that we need to think about the relationship between globalization, governance and justice. It does so in three stages: first, it explains how, under conditions of globalization, assumptions made about the social bond are changing; second, it demonstrates how strains on the social bond within states give rise to a search for newer forms of global political theory and organization, and the emergence of new global (non-state actors) which contest with states over the policy agendas emanating from globalization; and third, despite the new forms of activity identified in the second stage, the article concludes that the prospects for a satisfactory synthesis of a liberal economic theory of globalization, a normative political theory of the global public domain, and a new social bond are remote.
Proponents of cosmopolitan democracy rely primarily on institutional design to make their case for the feasibility of democratic governance at this level. Another strategy seems more plausible: proposing a `non-ideal' theory in Rawls's sense that examines the social forces and conditions currently promoting democracy at the international level. The strongest forces operating now are various transnational associations that help to produce and monitor regime formation and compliance. Such a highly decentralized form of governance suggests that democratization is thereby promoted by a dense network of associations in international civil society, a global public sphere, and responsive political organizations. However much these forces disperse power through the normative principle of equal access to political influence, they could also fall well short of realizing desirable ideals such as free and open deliberation. In order not to devolve into an interest group pluralism, the decentralized strategy requires that a richer democracy be realized through the legal institutionalization of free and equal access to the global public sphere.
A central divide in philosophical thought about international distributive justice separates `social' from `cosmopolitan' liberalism. These views differ about the nature of the problem of international justice: social liberals are primarily concerned about fairness to states or societies, whereas cosmopolitan liberals are concerned about fairness to individuals. This article explores three reasons why philosophers interested in international distributive justice often regard social liberalism as the more plausible view. These reasons have to do with alleged differences between domestic and international society: empirical beliefs about the sources of backwardness; and moral preconceptions about the fairest allocation of the costs of irresponsible economic and population policies. The article argues that none of these reasons is persuasive, and that the deep ethical distinction between the domestic and the international realms, on which social liberalism depends, is more difficult to defend that many philosophers have thought.
This article suggests that three widely shared commonsense principles of fairness or equity converge upon the same general answer to the question of how the costs of dealing with a global environmental challenge like climate change could be distributed internationally. The first of these principles is that when a party has in the past taken an unfair advantage of others by imposing costs upon them without their consent, those who have been unilaterally put at a disadvantage are entitled to demand that in the future the offending party shoulder burdens that are unequal at least to the extent of the unfair advantage previously taken, in order to restore equality. The second is that, among a number of parties, all of whom are bound to contribute to some common endeavour, the parties who have the most resources normally should contribute the most to the endeavour. The third commonsense principle is that, when a) some people have less than enough for a decent human life, b) other people have more than enough, and c) the total resources available are so great that everyone could have at least enough without preventing some people from still retaining considerably more than others have, it is unfair not to guarantee everyone at least an adequate minimum.
This article examines the thesis that international law is evolving in ways that reflect the requirement of world justice rather than international order and that are appropriate to an emerging world society rather than the traditional society of states with which international law is normally associated. After considering arguments for and against this thesis, the article concludes that neither adequately describes the nature of international society at the end of the millennium.
The United Nations approaches economic and social human rights through a framework of legal positivism. States are called on to respect, protect and fulfil their legal obligations contained in international human rights law. The state remains ultimately responsible for guaranteeing these economic and social human rights. This article explores the viability of this statist approach in this era of economic globalization. The less developed countries often face economic deprivation caused not by state action/inaction but by the global economic system itself. In many key respects states appear to be losing their capacity to regulate their economies and labour markets effectively. Yet despite the shrinking nature of our global community, the state is still central in the creation of the proper environment for the fulfilment of these rights. This article analyses the national strategies that governments can pursue to respect, protect and fulfil the economic and social rights of their citizens, and thus meet their international legal obligations.
The Pinochet case highlights important developments in the international constitutional system which have become gradually established over the past half-century. These developments relate to the position of the state within the international constitution and the decreasing relevance of classical views centred upon state sovereignty and legal positivism. It was made clear that the powers and functions of the state are regulated by and embedded within the international legal system, including fundamental material rules of constitutional standing. Several of these rules enjoy a jus cogens and erga omnes status. Violations can involve crimes or state plus individual responsibility for the offenders directly under international law. And, according to the expanding doctrine of genuine universality, all states may enjoy a legal entitlement to exercise jurisdiction in relation to offenders who cannot claim the benefit of sovereign immunity. However, the Pinochet case also points to some difficulties. These lie principally in the failure of individual states to create the necessary domestic criminal law to implement genuine universality. Problems also arise in relation to crimes which claim special universality on the basis of law-making conventions, but which have not yet been established in general international law.
The Hague Peace Conference of 1899 was unprecedented and momentous. Pressed by public concern about the arms race and its costs, the governments of all great and most lesser powers, suppressing their doubts about the possibility of achieving anything, convened in May 1899 to discuss the Tsar's draft proposals for general measures of disarmament and pacification. Although there was too much mutual suspicion for any progress with disarmament, the Conference opened up a new era in international relations: its multilateral treaty to encourage arbitration and its establishment of a permanent court to facilitate this may be seen as the germ of the International Court of Justice; and within a batch of measures designed to modernize the laws of war, the Hague Regulations Respecting the Laws and Customs of War on Land, recapitulated at the second such conference in 1907, became the basis of our century's laws of war. Apart from those achievements, given the grand aims of the Conference and the public interest it generated, it can be seen as a prototype of all League of Nations and United Nations gatherings ever since.
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