There are several important things to be discussed, in connection with the concept of International Justice. The gist of the present entry is in the fact that international justice cannot be meted outside of representative international bodies, and in the existing atmosphere of blatant disrespect for the United Nations, on the part of several very important countries, any hope for the establishment of the rule of international justice in the modern world must be relegated to the realm of wishful thinking.
Perhaps, the most significant sign of the general failure of the system of international justice is the fact that the United Nations’ principal judicial body, the World Court (a.k.a. the International Court of Justice), has not been accepted by the United States as the highest legal authority on the planet. (When in 1986 the Court ruled against the United States in its dispute with Nicaragua, America repeatedly used her veto power at the UN Security Council to “overrule” the Court’s judgment, and thus, for all intents and purposes, put herself, the defendant, above the Court’s jurisdiction.)
The World Court’s main stated function (aside from its general advisory capacity) is to settle legal disputes, submitted by the nations of the world in accordance with international law. The Court, based at The Hague (alongside its younger sibling, the International Criminal Court, also based at The Hague and also snubbed by the United States), was established in 1945, during the era of Western dominance at the United Nations, and has always been a particular darling of the Western Democracies. Thus, although the United States is by no means the only nation which does not abide by its dictates, the irony of the fact that the leader of the free world so blatantly disrespects the most cherished legal fetish of the free world speaks volumes of the overall “effectiveness” of the whole international justice system of modern times.
But is it possible that I am overblowing the practical importance of the International Court? After all, it is functioning reasonably well, even if in a somewhat diminished capacity, and for a host of international matters it is serving that limited purpose. In other words, it is much better to have it, than not. On the other hand, the practical matters of law, including international law, are most commonly decided by national courts of law, such as the various American courts of law, which, ever so often, handle the issues that would normally fall under the stated jurisdiction of the Courts at The Hague, or a host of British courts, handling the same kinds of issues in their business routine, etc., etc...
There are several serious objections to this kind of utilitarian reasoning, starting with the most specific one (referred to in the UN Charter). The key role of the World Court in the settlement of international disputes is to avoid modern wars, or, if such wars are nevertheless unavoidable, making them just wars, as far as the party siding with the United Nations is concerned, against the pariah state, or states, which do not abide by the international resolutions aimed at preventing such wars in the first place. These complicated cases obviously cannot be handled by any national court, according to the principles laid out by Hobbes in the excellent excerpt quoted later in this entry, and the role of International Arbitration in such cases must therefore become indispensable.
Another key objection is that, although there are many exceptionally well-qualified national authorities on the international law, even the best of them are not qualified to serve international justice, unless they are specifically designated for this particular function under the United Nations Charter (which brings us back to the International Court of Justice). National laws, under which all national courts operate, are not even designed to mete out international justice, which differs from national law in its abstraction from the specific national realities served by the national legal bodies.
Before I move on to the main question of this entry, Qui Juge?, here is the most general of all objections, in this case. Considering that International Justice is, first and foremost, an ideal abstraction, as we have just observed, it is also, by default, the very symbol of international legality and the rule of law. Thus any failure to recognize the UN-Chartered system of International Law is a direct assault not only against a particular international body, but also against the principle, the very concept of international justice. Any country in violation of this principle must inevitably be turned into an international pariah, otherwise, the unpunished violation turns the noble principle at its heart into a pathetic joke. Therefore any recourse to a lesser body than the highest international court in the world, in order to circumvent its lawful jurisdiction, must necessarily defeat the purpose of international justice.
And finally, here is a fine argumentum to the philosophical authority of Thomas Hobbes, the long-promised excerpt from his 1640 opus The Elements of Law Natural and Politic (1:17:6-7), addressing the need for a universally recognized international political/legal authority, that could be re-established along the already existing lines of the United Nations Court of Justice, except for the fact that its non-recognition by the U.S. creates a major obstacle to the realization of this task. It largely speaks for itself, but a few of my comments are instructive. Before I proceed, though, let me remind the reader of what I have already said several times before: Hobbes to me is not just a great philosopher, religious and legal thinker, but he is also a leading representative of the particular Anglo-American school of thought, and, as such, his judgment carries an additional weight in applying it to the development of this Anglo-American cultural and legal tradition.
Although men agree upon these laws of nature, and endeavor to observe them; yet, considering the passions of men that make it difficult to understand by what actions those laws are broken, it is necessary that there be some common arbitrator and judge (who must of course be recognized by every party without exception, or else, his arbitration would be rendered worthless), to whose sentence both the parties to the controversy ought to stand. (Naturally!) And, therefore, it is a law of nature (I have discussed the ambiguity of this term elsewhere, but, in this instance, its clarity is contextually stipulated), that in every controversy, the parties ought to agree upon an arbitrator, whom they both trust; and to covenant to stand to the sentence he shall give therein. For, where every man is his own judge (or demands to be everybody’s judge, like someone we all know!), there, properly, is no judge at all; as where every man carves out his own right, it has the same effect, as if there were no right at all; and where is no judge, there is no end of controversy, and, therefore, the right of hostility remains. (In other words, the threat of war and the actual war are inevitably expected, in this scenario.)
An Arbitrator, therefore, or judge, is the one who is trusted by the parties to any controversy. Out of which follows, first, that the judge ought not to be concerned in the controversy he ends; as in that case he is party, and ought, by the same reason, to be judged by another (here is the role which the United States is unable to play in the Middle East, making herself party, with Israel, and therefore, not an Arbitrator, by any stretch of an imagination); secondly, that he makes no covenant with either of the parties, to pronounce a sentence for the one, more than for the other. (The existing American agreements with Israel, Taiwan, and other parties, in the ongoing controversies, without the identical and only then adequate agreements with the other parties in those disputes, make this country ineligible for the Arbitrator’s role, under Hobbes’s second condition.) …And thirdly, that no man ought to make himself the judge in any controversy between others, unless they consent and agree to it. (Here now is the third condition, which was totally disregarded by the United States under President Clinton in Yugoslavia, where the role of addressing the situation in Kosovo ought to have been given to the United Nations, whose member Yugoslavia was, and therefore, was obligated to accept its arbitration, but not to NATO, whose member Yugoslavia never was and therefore was not obligated to obey the NATO dictates!)
But all these are just particular details, while our general grievance for the sorry condition of the world and for the poor state of international affairs must be reiterated by recalling the earlier part of this entry.---
We cannot hope for a respectable state of world affairs as long as the main international bodies designed to govern them are being habitually disrespected and dismissed as hindrances, rather than the necessary tools of solving global and regional problems.
Perhaps, the most significant sign of the general failure of the system of international justice is the fact that the United Nations’ principal judicial body, the World Court (a.k.a. the International Court of Justice), has not been accepted by the United States as the highest legal authority on the planet. (When in 1986 the Court ruled against the United States in its dispute with Nicaragua, America repeatedly used her veto power at the UN Security Council to “overrule” the Court’s judgment, and thus, for all intents and purposes, put herself, the defendant, above the Court’s jurisdiction.)
The World Court’s main stated function (aside from its general advisory capacity) is to settle legal disputes, submitted by the nations of the world in accordance with international law. The Court, based at The Hague (alongside its younger sibling, the International Criminal Court, also based at The Hague and also snubbed by the United States), was established in 1945, during the era of Western dominance at the United Nations, and has always been a particular darling of the Western Democracies. Thus, although the United States is by no means the only nation which does not abide by its dictates, the irony of the fact that the leader of the free world so blatantly disrespects the most cherished legal fetish of the free world speaks volumes of the overall “effectiveness” of the whole international justice system of modern times.
But is it possible that I am overblowing the practical importance of the International Court? After all, it is functioning reasonably well, even if in a somewhat diminished capacity, and for a host of international matters it is serving that limited purpose. In other words, it is much better to have it, than not. On the other hand, the practical matters of law, including international law, are most commonly decided by national courts of law, such as the various American courts of law, which, ever so often, handle the issues that would normally fall under the stated jurisdiction of the Courts at The Hague, or a host of British courts, handling the same kinds of issues in their business routine, etc., etc...
There are several serious objections to this kind of utilitarian reasoning, starting with the most specific one (referred to in the UN Charter). The key role of the World Court in the settlement of international disputes is to avoid modern wars, or, if such wars are nevertheless unavoidable, making them just wars, as far as the party siding with the United Nations is concerned, against the pariah state, or states, which do not abide by the international resolutions aimed at preventing such wars in the first place. These complicated cases obviously cannot be handled by any national court, according to the principles laid out by Hobbes in the excellent excerpt quoted later in this entry, and the role of International Arbitration in such cases must therefore become indispensable.
Another key objection is that, although there are many exceptionally well-qualified national authorities on the international law, even the best of them are not qualified to serve international justice, unless they are specifically designated for this particular function under the United Nations Charter (which brings us back to the International Court of Justice). National laws, under which all national courts operate, are not even designed to mete out international justice, which differs from national law in its abstraction from the specific national realities served by the national legal bodies.
Before I move on to the main question of this entry, Qui Juge?, here is the most general of all objections, in this case. Considering that International Justice is, first and foremost, an ideal abstraction, as we have just observed, it is also, by default, the very symbol of international legality and the rule of law. Thus any failure to recognize the UN-Chartered system of International Law is a direct assault not only against a particular international body, but also against the principle, the very concept of international justice. Any country in violation of this principle must inevitably be turned into an international pariah, otherwise, the unpunished violation turns the noble principle at its heart into a pathetic joke. Therefore any recourse to a lesser body than the highest international court in the world, in order to circumvent its lawful jurisdiction, must necessarily defeat the purpose of international justice.
And finally, here is a fine argumentum to the philosophical authority of Thomas Hobbes, the long-promised excerpt from his 1640 opus The Elements of Law Natural and Politic (1:17:6-7), addressing the need for a universally recognized international political/legal authority, that could be re-established along the already existing lines of the United Nations Court of Justice, except for the fact that its non-recognition by the U.S. creates a major obstacle to the realization of this task. It largely speaks for itself, but a few of my comments are instructive. Before I proceed, though, let me remind the reader of what I have already said several times before: Hobbes to me is not just a great philosopher, religious and legal thinker, but he is also a leading representative of the particular Anglo-American school of thought, and, as such, his judgment carries an additional weight in applying it to the development of this Anglo-American cultural and legal tradition.
Although men agree upon these laws of nature, and endeavor to observe them; yet, considering the passions of men that make it difficult to understand by what actions those laws are broken, it is necessary that there be some common arbitrator and judge (who must of course be recognized by every party without exception, or else, his arbitration would be rendered worthless), to whose sentence both the parties to the controversy ought to stand. (Naturally!) And, therefore, it is a law of nature (I have discussed the ambiguity of this term elsewhere, but, in this instance, its clarity is contextually stipulated), that in every controversy, the parties ought to agree upon an arbitrator, whom they both trust; and to covenant to stand to the sentence he shall give therein. For, where every man is his own judge (or demands to be everybody’s judge, like someone we all know!), there, properly, is no judge at all; as where every man carves out his own right, it has the same effect, as if there were no right at all; and where is no judge, there is no end of controversy, and, therefore, the right of hostility remains. (In other words, the threat of war and the actual war are inevitably expected, in this scenario.)
An Arbitrator, therefore, or judge, is the one who is trusted by the parties to any controversy. Out of which follows, first, that the judge ought not to be concerned in the controversy he ends; as in that case he is party, and ought, by the same reason, to be judged by another (here is the role which the United States is unable to play in the Middle East, making herself party, with Israel, and therefore, not an Arbitrator, by any stretch of an imagination); secondly, that he makes no covenant with either of the parties, to pronounce a sentence for the one, more than for the other. (The existing American agreements with Israel, Taiwan, and other parties, in the ongoing controversies, without the identical and only then adequate agreements with the other parties in those disputes, make this country ineligible for the Arbitrator’s role, under Hobbes’s second condition.) …And thirdly, that no man ought to make himself the judge in any controversy between others, unless they consent and agree to it. (Here now is the third condition, which was totally disregarded by the United States under President Clinton in Yugoslavia, where the role of addressing the situation in Kosovo ought to have been given to the United Nations, whose member Yugoslavia was, and therefore, was obligated to accept its arbitration, but not to NATO, whose member Yugoslavia never was and therefore was not obligated to obey the NATO dictates!)
But all these are just particular details, while our general grievance for the sorry condition of the world and for the poor state of international affairs must be reiterated by recalling the earlier part of this entry.---
We cannot hope for a respectable state of world affairs as long as the main international bodies designed to govern them are being habitually disrespected and dismissed as hindrances, rather than the necessary tools of solving global and regional problems.
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