Unjust Justice: Against the Tyranny of International Law - Hardcover

Delsol, Chantal

Hardcover

ISBN 10: 1933859075 ISBN 13: 9781933859071

Publisher: Isi Books, 2008

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Book by Delsol, Chantal

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UNJUST JUSTICE

AGAINST THE TYRANNY OF INTERNATIONAL LAWBy Chantal Delsol

ISI BOOKS

Copyright © 2004 Editions de la Table Ronde
All right reserved.
ISBN: 978-1-933859-07-1

Contents

TRANSLATOR'S PREFACE....................................................................................page viiAUTHOR'S NOTE...........................................................................................page xiINTRODUCTION MORALITY PLACED ABOVE ANY RELIGIOUS OR SECULAR FAITH......................................page xvCHAPTER 1 GENEALOGY: FROM UNIVERSAL EMPIRE TO THE WORLD STATE..........................................page 1CHAPTER 2 COSMOPOLITANISM AND UTOPIA: THE RELEVANCE OF THE LATER KANT..................................page 9CHAPTER 3 THE HOLOCAUST AS TOUCHSTONE AND CRITERION OF CRIMES AGAINST HUMAN RIGHTS.....................page 17CHAPTER 4 THE CONTEMPORARY DISMISSAL OF MONTESQUIEU AND THE MODERATE ENLIGHTENMENT.....................page 31CHAPTER 5 THE MONOPOLY ON MORAL JUDGMENT AND AN INTERNATIONAL MORAL ORDER..............................page 39CHAPTER 6 LAW AND RECOGNITION: A PRESUPPOSED BUT NONEXISTENT MORAL CONSENSUS...........................page 49CHAPTER 7 BABEL AND THE FEAR OF THE FRAGMENTATION OF THE WORLD.........................................page 59CHAPTER 8 PLURALITY AND LIBERTY: THE BENEFITS OF CONFLICT..............................................page 65CHAPTER 9 LIMITS: THE CONDITION AND GUARANTEE OF DIVERSITY.............................................page 73CHAPTER 10 CONTEXT AND BEING SlTUATED IN THE PARTICULAR................................................page 81CHAPTER 11 CAN ONE SIMPLY TRANSFORM NATURAL LAW INTO POSITIVE LAW?.....................................page 89CHAPTER 12 WORLD GOVERNMENT, OR THE END OF POLITICS....................................................page 97CHAPTER 13 THE PROCESS AND THE LAN....................................................................page 103CHAPTER 14 CONQUEST VERSUS QUEST.......................................................................page 109CHAPTER 15 PERSUASION AND WITNESSING...................................................................page 113CHAPTER 16 JUST WAR AND POLITICAL DECISION.............................................................page 119CONCLUSION..............................................................................................page 127NOTES...................................................................................................page 135INDEX...................................................................................................page 143

Chapter One

GENEALOGY: FROM UNIVERSAL EMPIRE TO THE WORLD STATE

THE IDEA OF establishing a unified, universal political order capable of bringing peoples together under the reign of justice and thus putting an end to war emerged long ago with Alexander the Great and later Caracalla; it resurfaced at the time of Christian Europe. Both Dante's idea of a universal monarchy and the reality of the Germanic Holy Roman empire corresponded to Christendom's desire to embody its spiritual universality in a political form. In the sixteenth and seventeenth centuries the empire, and Christendom as a whole, had to renounce their claims to universality because of the rise of national states and the emergence of the modern concept of sovereignty. The church retreated into spiritual universality, while the idea of political universality disappeared. The universal forms desired first by the ancients and then by Christians were very different from what appeared in modern times during the French Revolution. The difference consisted in two things.

Among the ancients the universal empire did not embrace the entirety of the planet, but only that portion occupied by the Greeks and later by the Romans. In their eyes it was vast, but it was quite small compared to the entire world, which was incompletely known by them. They considered the outsiders they knew to be barbarians. But the existence of these countless vaguely known peoples located beyond the limits of the civilized world relativized the idea of the universal and allowed for a distinction between us and them. The ancient empire did not encompass the globe. It left diversity in place. Because it was not monopolistic, because an outside perspective could judge it, it hardly resembled the world government proposed by moderns. As long as Tacitus could write a Germania, there was no cosmopolis.

Among the Christians, on the other hand, the universality was truly global. It ideally included all peoples, even the most barbarous, because all are called to enter into the kingdom of God. However, Christians distinguished that kingdom from worldly ones. The goal was neither to establish worldwide laws nor a single state but to spiritually convince peoples and cultures, which would otherwise retain their differences.

Until the eighteenth century, therefore, the idea of a thoroughly universal unity was limited on one hand by the relative modesty of the actual imperial territory and the great extent of the surrounding world, and on the other by the restriction of its rule to spiritual ends by the Christian community.

With the French Revolution, we see the two ideas combined for the first time. What emerged was the notion of a world government deployed throughout the entire earth with all the prerogatives of what Christians called "temporal government."

The French revolutionaries demanded the abolition of borders and their replacement by a universal republic: "The division of the human race into different peoples is like feudal anarchy ... and two sovereigns on the earth are as absurd as two gods in heaven" wrote Anacharsis Cloots, who also spoke of his "aversion to the fragmentation of the world." As we will see, the denial of diversity is rooted in the absolute certainty that only one right way of life exists.

Marxists looked forward to the first truly universal state, one that would cover the entire globe. The purpose of its unity was the realization of homogeneity. The universal state encompassing the entire world was to be "socially homogenous," that is, without classes. Established in London in 1864, the First International called itself the International Workingmen's Association. And despite events-especially wars-to the contrary (because they continued to place issues in the context of outdated nationalisms), the constant effort of the various Internationals until the 1960s was to abolish borders. When national exigencies were imposed upon socialism, Trotskyite movements took up the torch of internationalism. The dream of a worldwide proletarian revolution leading to a world government and classless society still appears in French neo-Trotskyite literature.

Current opponents of globalization rebel against the domination of a single vision of the world. That vision, as is well known, is that of economic and political liberalism, the "democracy of the market," as it is sometimes called. It is not imposed by force or even by the threat of force, but rather constantly develops on its own and is currently uncontested, since no real alternative has presented itself since the fall of the Berlin Wall. The few remaining recalcitrant countries (such as Cuba and North Korea) will eventually have to go along, because their political-economic systems lead only to ruin.

At the beginning, then, globalization was a Communist idea. Today, it finally seems to be coming to fruition by means of liberalism. Put another way, history's real irony is that globalization is being realized by the opponents of those who initially proposed it.

Therefore, the Western groups that rebel and rail against globalization, whether at Genoa or elsewhere, only reveal half of their thought to the public. They really do not oppose globalization as such, but liberal globalization. And what they really wish to defend is not diversity or pluralism in the face of a single form of thought that is being imposed universally. Rather, they want to direct themselves the process of homogenization-they want it to occur under their banner.

This is a form of deception, because the unsuspecting person who opens his newspaper in the morning believes it when he reads that the opponents of globalization are defending his "right to difference," while in truth they are only resisting the winners' version of globalization.

The ideology defended by antiglobalists is really a new globalist ideology erected on the ruins of "real socialism," and it is still animated by a hatred of triumphant liberalism. The moralizing, pontificating nongovernmental organizations (NGOs) present at the 2001 Durbin conference against racism, etc., provided a striking illustration. Called "transnational progressivism," or "neoprogressivism," this current of antiglobalism draws from the Marxism of Gramsci and interprets the world according to an eternal conflict between oppressors and oppressed. It presents itself as the only alternative to liberal globalization. But it echoes the latter's dogmatic and monopolistic certitude. It envisages the elimination of state sovereignties and, when it does not simply abolish the term "citizen," it speaks of the "transnational citizen" or "global citizen." The latter is like the ancient stoic notion of the "citizen of the world," except this time he is stripped of all particular identities or affiliations and bears only a global identity.

However, the antiglobalists find themselves stymied, incapable of any forward movement, by the stark contrast between their ideal society and today's society. Their ideal irresistibly recalls the Communist episode that people today have no desire to revisit. Thus, they claim to be "anti"-globalists rather than "alternative" globalists. They have to stop short at the stage of negation or denial, which makes them look like the nihilists of old. It will not be under their auspices that a new universalism will come to be, because what they have to propose in this vein is so suspect.

The new universalism shows up rather in the speech of those partisans of democracy who are adept at talking about human rights. This discourse is partly now so persuasive because it was uttered by the true heroes of earlier times: the dissidents. They understood the monstrosity of totalitarianism and devoted themselves single-mindedly to the work of recognizing human dignity. A few decades ago it was the Marxists who were considered paragons of generosity and humanity. Today the side of the angels is taken-the camp of the good is represented-by the democratic defenders of human rights.

The world government now being sought therefore has changed its nature along with the transformation of its proponents. It is no longer thought of as the result or expression of real universal equality, nor as a statist machine designed to produce a new humanity. Rather, it is presented as a means of establishing justice at the level of the entire globe, aimed especially against states that oppress their peoples. Ever since Garry Davis, the first postwar "citizen of the world," world government has seemed to be the sole effective way of responding to the horrors of wars between nations and of injustices within them.

During the 1950s the motivation for world government was the need for peace, in the context of the nuclear threat, among those nations torn apart by the two world wars. Today local, internal wars between historical rivals have resurfaced, which is probably why world government is called for in the name of justice rather than peace. While it may appear less utopian, this new ambition nonetheless raises disturbing questions, which this book addresses. Our contemporaries no longer seek a "socially homogenous universal state," as Alexandre Kojve put it during the time of communism, but rather a morally homogenous universal state. It is natural that this rather vague ambient idea of a world government should be put at the service of the dominant value of the times. Today, for very understandable historical reasons, morality is more important to us than the equality of social classes. We have learned that the equalization of classes does not perfect but rather destroys societies.

The goal of the contemporary defender of human rights is to establish the worldwide reign of justice by means of global tribunals, without any possibility of appeal. In this way, the new internationalism organizes itself under the banner of the judge, not the commissioner.

Some may say that world government is an attractive but unreal utopia, of the sort which resurfaces on a regular basis. A few idealists and intellectuals detached from concrete life make it their mantra, while the world moves on without them. Why should we concern ourselves with them, or it? Well, because today a concrete step has been taken towards its realization: the creation of courts of international criminal justice. In general, the debates between its partisans-various NGOs, most European countries-and its detractors-those who have not ratified the treaty establishing the International Criminal Court, including the United States (and in fact all the most populous and powerful countries in the world)-are conducted in terms of a debate between moral idealism and Realpolitik. This debate, however, seems to me to miss the essential point. My aim here is not to demonstrate the unrealistic character of world government, its concrete impossibility-in short, its utopian character. On the contrary, while maintaining that it is possible because it has begun to be realized via institutions of international criminal justice, I want to show its injurious, even disastrous character. Put another way, it is the legitimacy and desirability of international criminal justice and of world government that interest me, not their ability or inability to be established in the real world. Everything is possible, and history can give rise to anything. The real question to ask is, what is desirable?

In point of fact the arguments by which the demand for international justice has been established have their grounds and are coherent. The political societies that exist today in the context of globalization no longer are self-sufficient; they cannot pretend to autarchy or to yesterday's sovereignty, The more that commercial and other exchanges develop, the more that interdependence makes itself felt, the more that the need for a common good which is global and not merely national becomes clear. This need corresponds to a very human exigency: the aspiration toward the universal, the desire to leave the narrow confines of the city-one's particular political community-and to share values, ideas, and goods with all of humanity, Moreover, the more that remorse for the disasters of the twentieth century grows-and this remorse cannot fail to grow as the veil over the Communist past is withdrawn-the more the desire to stop the great and petty tyrants of the earth will grow. What more noble aim can there be than to battle and defeat Evil wherever it may be found on earth? Why, therefore, should one oppose this beautiful and generous idea, that of cosmopolitan justice? It should be opposed because it undermines politics and, more generally, human diversity, both of which must be preserved. In defending politics and diversity, though, must we therefore deny the very idea of world justice? Not really. We must redefine it, though, in terms of other reference points than those to which the last two centuries have accustomed us.

Chapter Two

COSMOPOLITANISM AND UTOPIA: THE RELEVANCE OF THE LATER KANT

IN A WORK published in 1784 titled The Idea of a Universal History from a Cosmopolitan Point of View, Kant described the progress of humanity as the development of the human faculties during the long process of historical development. The short life of a single human does not leave him the time necessary to develop all his endowments, but through the accumulation of experience the human race can arrive at the ever more complete development to which the individual aspires. This idea is characteristic of an epoch that had not yet seen the barbarisms of the twentieth century, crimes which called into question the hope for human perfection, much less in perfectibility. It should not be consigned to the museum of antiquities, however. On the contrary, despite all our deceptions and disappointments (perhaps because of them), at the beginning of the twenty-first century we have never been closer to realizing what Kant regarded as "the supreme aim of nature: a universal cosmopolitan state." In writing this, Kant put his finger on the most ardent hope of humanity, as well as the greatest difficulty in realizing it. (To be sure, humanity can also refuse to hope for anything and content itself with meaningless chaos and a purposeless history). This hope is "the establishment of a civil society which administers law universally." We find ourselves at the beginning stage of the realization of this project.

In order to realize this work of reason, we will have to create a world state-Weltstaat. The world state capable of assuring justice between and among the many states, which until then will conduct themselves like individuals in the state of nature, will play the same role that a particular state plays vis--vis private vendettas. In the same way that it was earlier possible to end the state of nature between men and groups of men only by means of states, in the same way the state of nature, or the war of all against all found among states, will be brought to an end by the world state.

Kant invoked this world state in works published during the 1780s: in 1784 in The Idea of a Universal History, and in 1786, although in a rather imprecise way, in Conjectures on the Beginnings of Human History. But beginning with the 1790s his thinking changed. In the third part of Theory and Practice (1793), which is devoted to the jus gentium, the law of nations, the cosmopolitan constitution capable of bringing universal peace becomes more dangerous than war itself, because it "brings with it the most frightening despotism." The universal state still represents the historical hope of a humanity endlessly seeking perfection, but it has a changed nature. It henceforth is a question of "a state, to be sure, but one which is not a cosmopolitan community subject to a leader, it is a federated state subject to a law of nations to which all the member-states have agreed."

This change in perspective finds its completion in a text of 1795, Project of a Universal Peace. In it Kant clearly replaces the project, or hope, for a world state with the project or hope for a federation of free states that together would be capable of promoting justice and peace in the world.

(Continues...)

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Edition details

• Publisher: Isi Books
• Publication date: 2008
• Language: English
• ISBN 10: 1933859075
• ISBN 13: 9781933859071
• Binding: Hardcover
• Edition number: 2
• Number of pages: 151