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Along with the exploding attention to globalization, issues of global justice have become central elements in political philosophy. After decades in which debates were dominated by a state-centric paradigm, current debates in political philosophy also address issues of global inequality, global poverty, and the moral foundations of international law. As recent events have demonstrated, these issues also play an important role in the practice of international law. In fields such as peace and security, economic integration, environmental law, and human rights, international lawyers are constantly confronted with questions of global justice and international legitimacy. This special issue contains four papers which address an important element of this emerging debate on cosmopolitan global justice, with much relevance for international law: the principle of sovereign equality, global economic inequality, and environmental law.
How should liberal societies respond to nonliberal ones? In this paper I examine John Rawls's conception of international toleration against what is sometimes called a cosmopolitan one. Rawls holds that a just international order should recognize certain nonliberal societies, to which he refers as decent peoples, as equal members in good standing in a just society of peoples. It would be a violation of liberalism's own principle of toleration to deny the international legitimacy of decent peoples who, among other things, affirm human rights and accept peaceful coexistence with other societies. According to the cosmopolitan idea of international toleration, on the contrary, only societies that are liberal in character meet the criteria for toleration. I suggest that, against the Rawlsian conception of international toleration, the cosmopolitan idea is more consistent with the fundamentals of liberal political morality. I then clarify the ways in which cosmopolitan toleration is not worryingly interventionist even as it is not altogether toothless; and I end with some reflections on why cosmopolitism is not morally imperialistic.
In his well-written and well-argued paper ‘International Toleration: Rawlsian versus Cosmopolitan’, Kok-Chor Tan raises the important question as to where the limits of toleration are to be drawn. This is an important issue not only from the perspective of international law, but also for any domestic society. Toleration is never an automatic element or quality of any society, but has to be defended against the ever present danger of intolerance and repression. This is especially the case in the post-9/II era with regard to Islam, as it is not always easy to separate serious analysis of this religion from outright prejudices against its believers. With regard to Islamic minorities, the present attitude of some ‘Western’ majorities does not always reflect an attitude of respect, although this is not often admitted. It is not argued that Islamic minorities and other immigrants should adapt to the culture of the majorities because minorities have to give in to majorities on the basis of democracy; instead, it is claimed that Western majorities live in accordance with universal values. As Western societies have incorporated universal values formulated for the first time in the age of Enlightenment, they can rightly require from immigrants and minorities that they give up part of their values and identities without any real loss on their side. In forcing immigrants to adapt to Western values, majorities are merely liberating them from outdated particularistic codes and worldviews, thus enabling them to be free in accordance with truly universal values. This, obviously, is a peculiar way of understanding the Enlightenment, not with Kant as a perpetual challenge (‘we do not live in an enlightened age, but in an age of enlightenment’), but as something that is achieved and stably embodied in ‘our’ Western societies. Immigrants and minority members can reasonably be asked to identify with such societies. Although such a demand to assimilate might at first glance be seen as testifying to intolerance, in reality this is not the case. Why should we allow others to live in error? In the face of truth, toleration is a superfluous virtue. It goes almost without saying that this view, which is deemed by some as Enlightenment fundamentalism, contradicts the spirit with which Locke and Spinoza in the seventeenth century proclaimed the superior value of tolerance. They argued that all religions claim for themselves to be the one and only true religion and that the best attitude among the contenders of different beliefs would be one of tolerance: nobody can prove convincingly to the other side of the religious divide the truth of his own religion and the falseness of all other religions; and since ‘no man can conform his faith to the dictates of another (since) all the life and the power of true religion consists in the inward and full persuasion of the mind’ (Locke), the use of earthly powers is inappropriate and unjust.
Various human rights are widely recognized in codified and customary international law. These human rights promise all human beings protection against specific severe harms that might be inflicted on them domestically or by foreigners. Yet international law also establishes and maintains institutional structures that greatly contribute to violations of these human rights: fundamental components of international law systematically obstruct the aspirations of poor populations for democratic self-government, civil rights, and minimal economic sufficiency. And central international organizations, such as the WTO, the IMF, and the World Bank, are designed so that they systematically contribute to the persistence of severe poverty.
It is widely recognized that changes are occurring to the earth's climate and, further, that these changes threaten important human interests. This raises the question of who should bear the burdens of addressing global climate change. This paper aims to provide an answer to this question. To do so it focuses on the principle that those who cause the problem are morally responsible for solving it (the ‘polluter pays’ principle). It argues that while this has considerable appeal it cannot provide a complete account of who should bear the burdens of global climate change. It proposes three ways in which this principle needs to be supplemented, and compares the resulting moral theory with the principle of ‘common but differentiated responsibility’.
HAGUE INTERNATIONAL TRIBUNALS: International Court of Justice
The chamber of the ICJ entrusted with solving the Benin–Niger dispute based its judgment on the colonial heritage left to the two countries at the time of their independence, as prescribed by the uti possidetis juris principle. The dispute actually stemmed from that heritage: the chamber's role was to interpret and clarify it. But while the uti possidetis juris principle underlines border stability, features such as river boundaries, because of their intrinsic movable nature, can put this stability under intense strain. The judgment lends itself to further reflections on this dichotomy, since the disputed areas revolved around two rivers.
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Tribunal for the Former Yugoslavia
Commonly accepted distinctions between state and individual responsibility have created a conceptual chasm between the two sets of legal rules, which is in turn reinforced by different underlying theoretical conceptions of the international system. As a result of this conceptual chasm, current understandings of responsibility fail to describe adequately either the sources of harm to individuals or groups within states, or the changing relationships between individuals, non-state groups, and states. The doctrine of superior responsibility, however, offers the possibility for reconciliation of state and individual responsibility rules, by providing a theoretical basis and a practical method of developing understandings of liability for breaches of fundamental norms that more accurately reflect the channels of responsibility in contemporary conflict situations.
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Court
This article discusses the possibility of the International Criminal Court's taking domestic investigations and prosecutions of crimes within its jurisdiction where states are unwilling genuinely to investigate or prosecute such crimes. In particular sustaining the admissibility of a case on the basis of the lack of impartiality or independence of national proceedings is subject to analysis. Whereas the lack of this due process guarantee is expressly considered in the Rome Statute as a ground for admissibility where it is meant to shield a person from criminal responsibility, it is not equally clear that a case can be declared admissible where domestic proceedings are or were unfairly conducted to the prejudice of the person concerned. On an analysis of the wording of the Statute, its object and purpose, and its ‘preparatory works’, the possibility of the Court's taking on domestic proceedings on the basis of their being intentionally unfair to the prejudice of a suspect or accused does not appear to have a strong legal basis. However, recent developments at the ICTY and the ICTR show the importance of such a possibility to the fulfilment of the mission entrusted to the ad hoc tribunals. This circumstance brings about crucial questions about the role of the International Criminal Court in the enforcement of international justice and its contribution to international peace and security.
The report of the International Commission of Inquiry on Darfur, set up pursuant to a UN Security Council resolution, is an important contribution to the evolving law of genocide. The Commission concluded that genocide had not been committed, but that the case should be referred to the International Criminal Court for prosecution as crimes against humanity and war crimes. The Commission did not find significant evidence of genocidal intent. It looked essentially for a plan or policy of the Sudanese state and, in its absence, concluded that genocide was not being committed. The Commission endorsed the ‘stable and permanent groups’ approach taken by one trial chamber of the International Criminal Tribunal for Rwanda (ICTR). On this point, it exaggerated the acceptance of this interpretation, which has been ignored by other trial chambers of the international tribunals. However, the Commission found that the better approach to determination of the groups covered by the Convention is subjective, and that the targeted tribes in Darfur meet this criterion.
In early 2005 a Consultative Board presented a report (the Sutherland Report) on the functioning of the WTO and means to improve its efficiency. The author summarizes the Board's key findings and reflects on its main recommendations. The Board discusses sovereignty and globalization in the context of the world trading system. In addition it finds that the WTO needs to reconsider its institutional framework and some concepts underlying the organization. The Board particularly urges the WTO to address the erosion of the most-favoured-nation treatment through the proliferation of the preferential trade agreements. Transparency and civil society, dispute settlement, decision-making, efficiency, and the role of the Director-General and the secretariat are also discussed. The author concludes that the Board focuses on economic consequences of trade liberalization but fails to address the harmful effects of globalization. He agrees with the Board that institutional reform is required, but concludes that it would have been helpful if the Board had offered clearer direction on how to improve the decision-making process.
Books and Articles in the Field of the Prevention and Peaceful Settlement of International Disputes (Summer 2005) Compiled by Ingrid Kost exclusively from materials available in the Peace Palace Library, The Hague