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The Pursuit of International Justice: Present Dilemmas and An Imagined Future.

Obstacles of an ideological and structural character complicate the pursuit of international justice during this early phase of globalization. At the same time, several developments associated with globalization are encouraging to those committed to the promotion of international justice. The most salient obstacles arise from the persisting fragmentation of the world in reference to sovereign territorial states, and the widespread acceptance of efficiency and competitiveness criteria as the basis for assessing economic performance. The most promising developments arise from the plausibility of conceiving the world as a unity and from the beginnings of a global civil society due to the efforts of transnational social forces.

This article is intended to clarify the character of both the obstacles and the opportunities associated with international justice at this time in history. Five dilemmas are identified in this discussion that arise from efforts to promote international justice within the nonideal conditions of the world as we find it. This article concludes with a consideration of ways in which the transformation of the character of world order could greatly enhance the realization of international justice with far fewer disappointments and debilitating compromises than seem necessary within the present global setting.

Part of the undertaking of this symposium is to consider the contribution being made by international institutions with respect to international justice, including the United Nations system and its many elements. The role of institutions is central to all aspects of this inquiry, but it is also ambiguous. International institutions definitely promote and consolidate the ends of international justice in various respects, but they are also vulnerable to manipulation and control by political forces that are responsible for some of the worst forms of injustice, including patterns of domination, exploitation and victimization. Institutions, while being appreciated for their achievements, must also be criticized for their deficiencies.

At present, the most promising avenues for the immediate actualization of international justice involve sensitive adjustments to variations of state and society makeup, as in the numerous peace, reconciliation and accountability procedures established in a number of countries. Also encouraging are various collaborations between transnational social forces and those governments that are more value-oriented and sensitive to the claims of international justice, as compared with those that define their role according to the maximization of power, wealth and influence. Such projects include a push for treaties that prohibit anti-personnel landmines, outlaw reliance on nuclear weaponry and establish an international criminal court. Each of these initiatives has its own distinct character, but in aggregate discloses a new form of global politics in which states are more motivated by values and human solidarity than by interests conceived in a narrow sense. This new form, for example, potentially establishes global security based on a demilitarizing respect for law in relation to effective international institutions that are constitutionally oriented.

It is also important to acknowledge the contributions being made within regional frameworks, giving particular attention to the European experience. European regionalism in relation to economic cooperation and the protection of human rights is undoubtedly the boldest world order experiment currently underway. If the European Union is perceived as successful in other parts of the world, it could rapidly lead to the extension of a regional approach to address neglected instances of injustice. Especially in view of the current mood of disillusionment with the United Nations, it seems likely that institutionally and substantively, regional arenas will provide the most promising opportunities in the near future to pursue international justice in contexts beyond the boundaries of territorial states.

FRAMING "INTERNATIONAL JUSTICE"

The background of analysis and reflection about the nature of international justice mainly derives from earlier efforts to conceive of justice in relation to a specific community. This tradition in the West can be traced back to ancient Athens and the conceptions of justice set forth by Plato and Aristotle, and carried forward to our contemporary circumstances, perhaps most prominently by John Rawls.(1)

The evolution of thought about justice as applicable to political communities has been the central preoccupation of political philosophy through the centuries. Such thought relies on a dualism, most clearly evident in the Leviathan of Thomas Hobbes: specifically, justice and ethics are inapplicable in the absence of a viable international community; without community sentiments and institutions, separate sovereign states will continue to pursue their own ends unconditionally.(2) The idea of a just society of sovereign states was initially embedded in the medieval universalism of the Roman Catholic Church. It was also embodied in the shared Christendom of European states that founded and established the modern system of world order in the mid-17th century. The concept of justice coexisted with the idea of sovereignty, which in effect relegated most dimensions of justice to the internal relations between state and society with the separation of church and state that accompanied the rise of the modern state, the notion of justice assumed a specifically and predominantly secular character that could no longer be interpreted merely as an extension of religious thought.(3)

Two developments are crucial to the framing of international justice: the idea and practice of sovereignty at the level of the territorial state, and the increasing secularization of the most influential forms of speculation about the nature of justice. At the same time, various schools of natural law associated with Catholicism and other formulations of rights and laws rested on divine revelation, the timeless intuitions of rationality and the objective order of the universe. These approaches persisted as minority countertraditions that challenged the view of justice as socially constructed by human will in the specific settings of historical societies.(4) It is arguable that the positing of the Universal Declaration of Human Rights as a moral and legal foundation for political, social, economic and cultural behavior amounts to the reassertion of natural law as a legitimate underlying arrangement of governance.

A series of prominent jurists tried to make the transition to modernity, taking account of the rise of secularism and territorial sovereignty. Pre-Westphalian thinking about the nature of international political life was particularly well-developed by the Spanish school of international law, especially by Francisco de Vittoria and Francisco Suarez. Their outlook was essentially an extension and application of Catholic jurisprudence to the special circumstances of international life.(5) The birth of modern international law is generally associated with the treatise, The Law of War and Peace, written by the Dutch jurist Hugo Grotius in reaction to the destructive and barbarous Thirty Years War.(6) Grotius has remained a pivotal figure in international studies because his historical and intellectual location--with its appropriate particular emphasis on war--was astride the transition from medieval to modern times.(7) His insistence that the just-war doctrine formed an essential part of international law was an attempt to find an acceptable means of combining the realities of sovereign, secular statehood with the normative--both moral and legal--aspirations of the European system of world order.

This order presumed to impose limits on behavior even under conditions of warfare. Grotius also wrote at a time in which the common adherence to Christendom gave credence to the view that statehood could be combined with a sense of an international community that could, over time, establish a true international society As the state gained in strength and capability, the notion of some sort of solidarity based on a shared cultural or religious background faded, and more absolute notions of sovereignty prevailed. These views were expressed most influentially by the 17th century political philosopher Jean Bodin and by the Swiss jurist Emmerich de Vattel in the mid-18th century.(8)

Whether the Grotian evolutionary outlook was "utopian" has been subsequently debated in many settings, but most significantly in terms of whether the statist idea set definite limits on the degree of solidarity that could be effectively established in the relations among states.(9) The minimalist view that persists to this day is that a world of states can operate successfully only if it accepts such restraining ideas as nonintervention, the inoperable character of the outlawry of war, and the nonaccountability of leaders.(10) The contending view, which can be identified as the evolutionary or progressivist view, envisages steady progress toward a well-ordered international community premised on moves toward the supranational implementation of human rights--inherently interventionist--the prohibition of recourse to war and the accountability of leaders. A revival of interest in Grotius is partly occasioned by the ambiguity of the historical circumstance: namely, whether we are situated in a great transition from a statist world to some type of emergent global village.(11)

Aside from the relevance of justice to the international law tradition, there is the further preoccupation about how to escape from the core predicaments of an anarchical international society--especially from the Hobbesian idea of the war of all against all--without ignoring the structural reality that interacting sovereign states are grossly unequal in their capabilities.(12) Even before the emergence of the modern state, visionary thinkers conceived of a world more structured around some central institutional authority Justice was mainly conflated with order, and order was so highly valued because it was conceived to be the indispensable foundation for a durable peace.(13)

This tradition has been expressed in this century mainly in postwar settings that advanced plans for world government.(14) In effect, international justice was associated almost exclusively with the problem of war, and the solution was sought by institutionalizing the rule of law with respect to the use of force in international relations. The basic conception of world government evolved from state/society relations that conformed to a federalist model. The main anxiety among advocates and critics of world government, aside from the difficulty of its attainability, was the danger that such a centralization of authority would likely, or even inevitably, degenerate into a demonic superstate that would establish a totalitarian reign of global scope.(15) Thus the challenge for advocates of world government, or enhanced central guidance, was to design a constitutional structure of checks and balances that was effective enough to prevent war, yet inefficient enough to be incapable of mounting global authoritarianism.(16)

In an important sense, the League of Nations as established after the First World War and the United Nations after the Second World War represented diluted moves in this direction of institutionalized authority. Beset both by problems associated with the unwillingness of states to renounce their own sovereignty (the problem of attainability), and a concern about the menace of premature centralization of authority (the problem of global authoritarianism), these steps toward creating the structures of international justice disappointed visionaries and disillusioned even those neo-Grotians who took refuge in optimistic expectations associated with an evolutionary view of global political development. At the same time, these moves toward the establishment of an organized international community disappointed world federalists who regarded such steps as far too modest to achieve the goal of war prevention. They also frightened ultranationalists who saw these steps as moving inexorably toward a diabolical world state. But such moves generally satisfied liberal internationalists who, placing particular hope in the eventual prospect of ever greater cooperation of a functional character, believed that progress at the global level could be achieved only by small incremental steps.(17)

INSTITUTIONALIZING THE QUEST FOR INTERNATIONAL JUSTICE

As a result, there have been three adaptations of a system designed to pursue international justice. First, there have been those who viewed the U.N. system as containing an evolutionary promise that could be fulfilled by bold action to convert the organization from its relatively impotent present character into an entity of sufficient capabilities and authority to bring peace--and thereby justice--to the world. Grenville Clark and Louis B. Sohn, in World Peace through World Law,(18) proposed the most widely articulated version of this reformist strain, although this line of thought has not persisted essentially because it has failed to attract adherents. This may well reflect the perception that its solution to the problem of attainability did not seem at all commensurate with the severity of the resistance arising from an attachment to sovereign rights and the creeds of nationalism. Additionally, the United Nations, although the site of many notable innovations at the margins of world politics, has not provided a receptive arena for any further structural modifications that move away from a sovereignty-centered world.(19) Such institutional rigidity has been especially manifest with respect to the inability of the United Nations to "fix" the composition of the permanent membership of the Security Council in a manner that better reflects the changes in the character of international society since 1945, particularly the impact of decolonization on the participation of the non-Western world.

A second and more promising line of adaptations involves a different way of envisioning evolution and progress in state relations--an approach that goes back to Immanuel Kant's immensely suggestive essay Perpetual Peace, initially published in 1795.(20) Although the interpretation of Kant's worldview remains contested, one idea has been derived and recontextualized in the conditions of the late 20th century--the idea of "democratic peace," which has been invoked in many guises and has generated an enormous body of recent literature, particularly in the United States.(21) The essential claim of this theory is that democratically organized states do not wage war against one another, and that democracy is spreading throughout the world as the basis of legitimate government.(22) The attractiveness of the idea is that it seems empirically grounded and follows the course of history. Also relevant is the liberal idea of support for international human rights as creating a just world society that extends its reach beyond the external relations of states to encompass the relations between governments and their citizens. Present in this idea is the expectation that a democratized world community would be able to agree upon far more ambitious institutional arrangements. This possibility is given added plausibility by the institutionalization of relations in the European regional context, even on sensitive issues of rights and money.(23)

Whether these views on democracy can be extended to non-Western countries and regions seems dubious at this time. It may turn out that a democratic peace holds only among Western democracies. Furthermore, the rise of global market forces is challenging the centrality of the state in the construction of world order, specifically by emphasizing the priorities of global capital as opposed to individuals within a given territorial community, and by generating policies in arenas that are beyond state control.(24) As such, the degree of institutionalization represented by the U.N. system seems to be slipping into the abyss of globalization despite the notable progress of recent decades toward democratization at the state level.(25) The United Nations may be too statist in conception to serve a world order in which both global market forces and transnational social actors are playing increasingly significant roles.(26) The seductive premise in the presumption of the democratic peace is that institutionalization at regional and global levels is not indispensable for a just world order. Rather, the inner orientation of states (especially states' commitment to democracy and human rights) is what forms their pattern of behavior in world society. This adaptation also tests the limits of plausibility, given the rising levels of interconnectedness that characterize so many aspects of international life, producing intractable problems ranging from the control of transnational crime and international migration, to the rise of international terrorism, the spread of weapons of mass destruction and the protection of the global commons.

The third line of adaptation takes the form of normative adjustment--deliberate transformative changes made in different arenas of authority to lessen human suffering. The World Order Models Project (WOMP) was initiated in 1967 to encourage systematic thinking by leading academics in different cultural and ideological settings about how to achieve a just world order. In the course of more than 30 years of activity, WOMP has generated a series of distinct perspectives on how to proceed toward the realization of international justice, but it has significantly failed to agree upon a single approach.(27) Although WOMP has avoided much of the Eurocentricism that appears to afflict earlier efforts to shape a just world order, it is vulnerable to allegations of utopianism for not having addressed the attainability problem in a convincing fashion. It does, however, move the international justice concern off an exclusively war/peace axis to embrace global concerns about poverty, inequality, environmental protection and social and cultural rights.

WOMP's attitude toward international institutions is diverse and ambivalent. Aside from its main organizational leader, Saul Mendlovitz, the other main participants in WOMP are skeptical about an enhanced United Nations both for reasons of attainability and appropriateness (i.e., the perception that the United Nations in its current form is too statist and too susceptible to geopolitical domination to serve consistently the interests of the peoples of the world in a just world order).

In this regard, my own efforts in recent years have been to articulate the notion of international justice by reference to "humane governance," examining positive and negative trends along several main axes of normative concern: security in relation to international and intranational violence; economic well-being in relation to basic human needs and degrees of inequality within and among societies; and the depth and breadth of democratization, including economic and social aspects of human rights and the extent of environmental protection as it relates to present and future conditions.(28) Humane governance is also conceived in relation to the otherness of "inhumane governance," a reference to degrees of insecurity, deprivation, exploitation, inequality, marginalization and environmental decay. An important line of inquiry examines the tensions between "globalization-from-above" (capital-driven market forces seeking a maximally efficient world) and "globalization-from-below" (people-oriented transnational and grass-roots social forces seeking a maximally humane and sustainable world).

Where the state fits into this drama of globalization will depend on how this essential encounter between contending forces of globalization resolves itself over the next decade. The outcome is likely to shape the extent to which international institutions play an enhanced role in the future, and if so, whether they will play a positive role from the perspective of humane governance. The critiques of the Bretton Woods institutions, especially the International Monetary Fund's stress on structural adjustment programs and the World Bank's promotion of mega-projects, were based on their alleged inhumane impacts.(29) The transnational project to establish an international criminal court is premised on its expected contribution to the realization of a more humane world order.(30) Each institutional aspect of the world system needs to be interpreted from the perspective of international justice to assess whether its promise and performance is to be viewed positively.(31)

The choice of the terminology of "governance" rather than "government" is also important for several reasons. First, governance calls attention to various forms of institutional and collective efforts to organize human affairs on a global scale, intending to move from the global institutions of the U.N. system through the various regional actors and down to transnational and local grass-roots initiatives. Second, the specific initiative of the Commission on Global Governance responded to a perceived window of opportunity to improve the world's peace and security infrastructure in the aftermath of the Cold War. Third, the idea of governance was intended to be flexible and analytical, avoiding the anti-sovereignty connotations of "global" or "world" government. And fourth, the focus on global governance was an expression of concern that a statist world order framework would no longer capture the reality being created by the rise of market forces and the transnational activities of voluntary civic associations.(32) It represents the conviction that self-organizing systems (such as the market or Internet) and other nonbureaucratized modes of authority (such as those of environmental or human rights activists and organizations) may achieve beneficial results without institutionalization. Furthermore, the beginnings of an existent global civil society are more easily encompassed within a governance structure for world society than they are within a traditional statist framework.(33) There is also present the related idea that fears and objections associated with world government may be dispelled, or at least mitigated, by thinking in terms of global governance.

Finally, in approaching international justice, it is crucial to conceive of present challenges arising both in the world as currently constituted as well as in relation to a range of desired end-states. How can the cause of international justice be promoted given present realities? What role do international institutions play within the U.N. system and at a regional level? Can this institutional role be strengthened, and if so, in what respects? Should the path to humane governance be increasingly one of "de-institutionalization," as with the downsizing operations that have been reconstituting the United Nations during the last several years? These inquiries find relevance in contexts in which the pursuit of international justice is not a matter of an imagined or desired future, but an all-too-real present replete with dilemmas and risks.(34) A feature of international justice within the existing framework of world order is the pervasive need to find a balance between contradictory pressures.

Among the many current concerns that pose such choices, the following may be highlighted for further consideration in this article:

* Balancing claims of peace against claims on behalf of justice in the transition from an authoritarian past to a democratic present and future at the level of the state;

* balancing claims of aggregate economic growth against the claims of equity and environmental protection, especially in relation to the acutely disadvantaged;

* balancing claims on behalf of a free and open market against claims in support of regulation on behalf of the public good;

* balancing claims on behalf of current human consumption against the claims of fairness to future generations;

* balancing claims on behalf of institutional efficiency, constitutional tradition and democratic consensus against the claims in support of unheard and marginalized voices;

* balancing claims of geopolitical leaders to provide order against claims associated with legal and moral prohibitions on the use of nondefensive force; and

* balancing claims of respect for cultural diversity against claims associated with the implementation of a universally binding framework of international human rights.

CONCEPTUALIZING THE CHALLENGE

International justice, no matter how conceived, seems distant from the realities of international life. Two complementary logics underpin the current system of world order: statist logic deriving from the Westphalian view of international society as constituted by territorial sovereign states, and market logic deriving from the moving forces of capital efficiency and minimal governmental regulation in an era of globalization. Increased opportunities for investment, growth and trade expansion are treated as the tests of a successful economic policy without raising questions about social harm.(35) Neither of these two logics of world order allows significant room for justice unless one gives credence to the rhetorical flourishes of political leaders. Indeed, the Westphalian state system has, as Ken Booth convincingly argues, disappointingly accommodated a series of severe "human wrongs" ever since its beginnings in 1648.(36) The laissez-faire orientation of the market has taken refuge in the lame conviction that, in due course, the invisible hand associated with economic growth would overcome economic hardship, a view almost completely lacking empirical support.(37)

The statist orientation has been associated primarily, especially in the last half century, with realist thinking derived from Machiavelli and Hobbes, and restated for our time by many public figures, perhaps most influentially by George Kennan and Henry Kissinger. This approach views policy through the prism of national interests, and scorns any serious effort to work toward human betterment or to overcome the anarchical character of international society.(38) There are, of course, many variations on the realist theme, but amid this diversity, coherence is maintained by a stress on the formative role played by power in the structuring of relations among states--still regarded as the main, if not the only important, international political actors.(39) As a group, realists are generally negative about the normative role of international institutions, seeking to pursue peace by way of countervailing power, and disregarding justice altogether except when humanitarian challenges induce philanthropic responses.(40) The main point here is that governments are dominated by realist modes of thinking, and this orientation is transferred to most of the personnel working on behalf of international institutions. Any discourse examining the prospects for international justice is treated by most realists as a waste of energy--or worse, a diverting manifestation of naive or utopian thinking. Such a critique is regarded as especially necessary in the United States, which realists have always regarded as peculiarly vulnerable to woolly-headed idealistic schemes, a tendency that allegedly reached its most alarming proportions during the latter years of Woodrow Wilson's presidency.(41)

If we shift our attention to the market logic, the outlook is no more favorable with respect to the attainment of justice. The current version of market logic has, for two or more decades, been shaped by a seemingly coherent group of ideas often labeled as "neoliberalism," or as either "rational economics" or "the Washington consensus." It is hazardous to generalize about the content of these ideas, but their main thrust is to favor liberalization of the economy; privatization of ownership to the extent possible; a minimal regulatory role for government; a stress on the most efficient return on capital; and a confidence that poverty, social distress and even environmental deterioration are best addressed through the invisible hand of rapid economic growth and the beneficence of the private sector.

This view of the market is reinforced by an Internet ethos that also favors minimizing the role of government and believes that the Internet, as a self-organizing system, requires no guidance to assure justice for the peoples of the world.(42) It needs to be understood that globalization as such, involving interconnectedness and global-scale technological innovations, especially in relation to information, does not entail an indifference to justice. This indifference arises from a set of ideas that could easily be reversed in a different political climate. Several recent events indicate that the political climate is becoming more receptive to concerns about justice. Examples include Tony Blair's advocacy of "the Third Way," the leftward slant of elections in several major European countries and the rethinking of economic policy provoked by the depth and duration of the world economic crisis that started in Southeast Asia in mid-1997 and spread to such important countries as Japan, Russia and Brazil.(43)

Nevertheless, the pursuit of international justice at this time is hampered by the strength of realism and neoliberalism, which continue to reflect the ideological orientation of policymaking elites in most parts of the world. The difficulty in pursuing international justice assumes three main forms. First is the trend toward the social disempowerment of the state as evident in the shift in its priorities, giving greater emphasis to the promotion of finance and business while being less responsive to organized labor and the challenges of homelessness and unemployment. Second is the downward pressure on public goods such as education and culture, and especially on global public goods associated with financing the United Nations and protecting the global commons against climate change and pollution. Third is the libertarian outlook of minimal government (less taxes and regulation) and maximum individualism that seems to be predominant among the most influential developers of information technology.

The social disempowerment of the state follows from the impact of neoliberal ideas, reinforced by arguments about competitiveness in more closely linked regional and world markets. Because the state possesses the most powerful mobilizing capabilities, it will be difficult to envision addressing the justice claims of the poor and of economically disadvantaged societies without a political process that results in the social reempowerment of the state.

The downward pressure on public goods also derives from pressures to downsize the state, eliminate its inefficiencies and marginalize its role in providing for such basic human needs as health, education, environmental protection and culture. Internationally, this downward pressure has been expressed partly through the financial crisis of the United Nations, especially the withholding by the United States of more than $1 billion in assessments long overdue. But beyond the current reluctance to support the United Nations is the even greater unwillingness to allow it to expand in ways that take advantage of the opportunities for more effective forms of governance that could include the active promotion of justice.

The libertarian outlook expresses the anarchistic spirit of the electronic frontier where the Internet gives individuals the freedoms associated with the wild spaces of the cyberworld. Such an ethic reinforces and is reinforced by the enthusiasm for market guidance that is fostered by the business community. Both tend to stand together in their dislike of government as an interventionist instrument with respect to the economy or social relations. The Internet also reinforces the individualism and self-centeredness of capitalism by weakening bonds based on community and tradition and finds an ethos of social responsibility antithetical, especially in the form of government welfare. Part of this anarchistic outlook is an opposition to either the expansion of public sector institutions or the creation of new institutions. Hence, at this time the Internet culture, despite some positive features, poses a new and formidable obstacle to the promotion of international justice.(44)

FIVE CONTEMPORARY DRAMAS: PURSUING INTERNATIONAL JUSTICE

There are many specific concerns about the pursuit of international justice within the historical and structural constraints of world order as it is currently constituted and evolving. Such nonideal realities pose difficult choices between contending viewpoints regarding the requirements and attainability of international justice. But these realities also confirm that the pursuit of justice is a matter of present relevance and cannot be relegated to the future. Decisions are controversial, and attentive citizens and responsible leaders make choices that disclose the character of international justice in concrete situations. In an important sense, international justice under present conditions of world order can be best understood as the effort to resolve a series of dilemmas that are here illustrated by reference to five dramas.

In resolving a dilemma, it is still possible for those who believed what it should have been resolved differently to argue that the policy outcome was unjust or otherwise inappropriate. International justice as a present dimension of world order is continuously in the process of gestation by way of reinforcement or repudiation of earlier decisions. As such, it can be seen as resembling the evolution of common law itself, or as a crucial feature of self-realization for a democratic polity. How such a polity resolves justice dilemmas significantly helps to establish its specific identity as a political system of a given character at a given time.

There is a special complexity about this process at the global level. In a political order that lacks a government, the dynamics of decision tend to be more dispersed and more difficult to interpret authoritatively. Many of the most important contributions to the pursuit of international justice are the result of actions taken at national levels of decision and may often involve assessment of the policy consequences for a particular state if it adheres to international standards of law and morality. In this regard, the voluntary adherence by a sovereign state to international legal standards may itself be understood as one embodiment of international justice.

Let us now view these general considerations in relation to the more specific dilemmas that seem to be of particular importance at this time with respect to the clarification of international justice.

(1) Reconciling peace and justice in transitions of state/ society relations to constitutional democracy.

One of the most persistent problems of this period is how to reconcile conflicting goals in the aftermath of severe criminality on the part of a past governing process. The regime responsible for crimes against humanity or genocidal behavior has passed from the scene but remains to varying degrees at large, often as part of a bargain by which its impunity was "purchased" as the price for its voluntary relinquishment of power. From its modern origins in the Nuremberg and Tokyo trials of surviving German and Japanese leaders after the Second World War, international law has progressed to the point where such behavior is increasingly subject to indictment, prosecution and punishment in various appropriate circumstances.

But the character of appropriate circumstances is far from self-evident. It often involves a delicate balancing of opposed considerations favoring either peace--in the sense of nonviolent coexistence between former leaders (the alleged perpetrators) and emergent leaders (the would-be constitutionalists)--or justice, in the sense of imposing accountability for past conduct. The current anguish and controversy concerning the role and effects of the Truth and Reconciliation Commission in South Africa is a vivid example of the search for peace and justice with the possible risk of achieving neither peace nor justice. The optimistic view is that foregoing criminal prosecution while documenting, acknowledging and denouncing the criminality of apartheid will avoid provoking the perpetrators of these crimes and yet provide satisfaction and relief to those South Africans who were victims or closely associated with victims. The less hopeful view is that the commission process will lead to a double failure: namely, that the perpetrators and their friends will remain incensed by their public humiliation, and the victims and their associates will feel that far too little has been achieved to close the book on such acute and pervasive cruelty and abuse.

What gives the issue its unavoidable character as a matter of justice is the perceived character of past behavior as constituting unforgivable crimes. From the perspective of minimum international standards of law and morality, these crimes are perhaps best categorized as "crimes against humanity" and "genocide."(45) And yet, if the cost of prosecution is seen as jeopardizing the transition to democracy or the peace of the community, the decision to grant impunity or amnesty seems understandable, even beneficial.

A poignant example of this dilemma has been presented prominently by the Pinochet incident. In the fall of 1998, while former Chilean dictator Augusto Pinochet was in Britain for medical treatment, a Spanish court requested his extradition to face charges relating to crimes of state involving Spaniards who were in Chile at the time of Pinochet's rule. Several other European countries also issued such requests. The Chilean government requested the release of General Pinochet and his return to Chile, arguing that the former leader was entitled to diplomatic immunity with respect to the behavior being challenged and was the object of criminal prosecutions in Chile. After complex deliberations, the British House of Lords indicated by a three to two vote that the government of Britain should accede to the request for extradition so that Pinochet's alleged responsibility for crimes against humanity could be prosecuted in Spain. Unfortunately, that vote subsequently has been set aside by the House of Lords for technical reasons, leaving the outcome uncertain once more. As of this writing, the House of Lords has assembled a new panel of judges to hear a second presentation of the case.

Here, the complexity of justice assumes a very fundamental form. The essential dilemma is whether the final decision in Britain should be made by reference to international standards or whether deference should be accorded to the views of the Chilean government. It is the Chilean people who might well bear the burden of a regression to military rule or, more probably, to incidents of civil strife. At the same time, all of international society has an interest in the application of these international standards as part of a wider effort to establish an effective procedure to ensure the accountability of leaders for such criminality. In an important sense, grants of amnesty or impunity in such settings are always "Faustian bargains."

Yet even if the premise of unforgivable crime is accepted, given the suffering that a society has experienced, should not the decision of its democratically elected leaders prevail? Even if one posits this argument, the outcome may not be so evident. Perhaps the current leaders are making a pro forma show of seeking the return of Pinochet while making it clear through confidential diplomatic circles that their real preference is for him to face prosecution overseas. Should not the views of those who identify with the victims most directly be given great weight in reaching a decision? There is little doubt that vocal anti-Pinochet Chileans would welcome his prosecution while pro-Pinochet Chileans would decry it.

At this stage of international history, it seems clear that these types of issues faced by many societies during the last decade need to be resolved on a contextual basis. The people who have endured the criminality--and their representatives--should have the first opportunity to resolve the dilemma of peace and justice. If the subject matter spills over the borders of a given country, as was the case with respect to Pinochet, then the balance of considerations assumes a far more complex form. The dynamics of international justice would benefit from the expanded opportunities for prosecution and the denial of claims of immunity But would the dynamics of peace be obstructed by undermining the reliability of impunity bargains struck in the past? Would dictators hesitate to relinquish the reins of power knowing of their vulnerability to future prosecutions if they should venture beyond the borders of their own country?

Such difficult questions suggest two conclusions: first, that the contextual attributes in each instance should be thoroughly explored; and second, that the process of appraisal and controversy should be carefully nurtured to clarify the issues at stake.

(2) Reconciling the promotion of economic growth with concerns about equity, and especially with the protection of those who are most economically disadvantaged or vulnerable.

During recent decades, economic policy has been increasingly shaped by neoliberal criteria that emphasize the primacy of capital efficiency in the allocation of resources. Part of this emphasis involves privatization and liberalization in which social and economic functions shift from the public to the private sector. The intranational result is the partial social disempowerment of the state. The international result is the decline of direct development assistance and the general conditionality of loans administered by the World Bank and International Monetary Fund. In effect, these institutions mount pressure to assure that a governmental recipient of funds does not use public resources for poverty alleviation and social distress, but rather to build a high-growth economy.(46)

The ethical rationale buttressing such policies rests on variants of the invisible hand, by which the entire social spectrum benefits--although not necessarily equally--from economic growth. In order to correct such a condition, the extent and character of adjustment is not evident, but it will clearly involve softening fiscal requirements to the extent required to avoid aggravating social distress.

The empirical evidence suggests inequality across a range of dimensions, a depiction well-summarized by Nancy Fraser. The search for justice occurs:
 ... in a world of exacerbated inequality--in income and property ownership;
 in access to paid work, education, health care, and leisure time; but also,
 more starkly, in caloric intake and exposure to environmental toxicity, and
 hence in life expectancy and rates of morbidity and mortality. Material
 inequality is on the rise in most of the world's countries--in the United
 States and in China, in Sweden and in India, in Russia and in Brasil. It is
 also increasingly global, most dramatically across the line that divides
 North from South.(47)


These trends have also been amply documented and summarized in the annual volumes of the U.N. Human Development Report. Two important ideas emerge from this report that relate to the pursuit of international justice. First, the commitment to economic growth does improve the aggregate economic well-being of people in general, with overall reductions in various forms of impoverishment. Second, this process of growth also exacerbates inequalities, making the rich richer and the poor poorer in every region of the world.(48)

Such observations occur under conditions of limited ideological alternatives. A socialist ethos--or even an international welfare program--does not currently seem politically viable. At the same time, there are increasing acknowledgements of the problem, perhaps most comprehensively at the Copenhagen Social Summit in 1995 which called for more concerted action to provide jobs, address poverty and overcome other types of social insecurity.

A further set of developments challenges the ideological primacy of neoliberalism, calling for various modifications in the direction of some social reempowerment of the state. The first includes the rethinking underway within the Bretton Woods institutions, a reaction to the inability of structural adjustment to arrest the deterioration of living standards for a substantial number of countries experiencing financial crisis since 1997. Of particular concern are their efforts to condition bailout relief on structural adjustments that produce political turmoil and massive impoverishment, as witnessed most alarmingly in Indonesia.

The second development contains the mandate of a series of recent European elections that appear to have repudiated neoliberal political orientations in favor of more social democratic outlooks, reinscribed for circumstances of economic globalization as the Third Way or as a call for the establishment of social Europe. The notion of social Europe as the Third Way seeks to reaffirm the social commitments to those who are poor or jobless without repudiating the move toward a dynamic model of European economic integration. In effect, social Europe implies that the advantages of this new phase of capitalism does not do away with the human achievements of the welfare state, the labor movement and social democracy. The United Nations Development Programme has also been urging an approach to economic policy that it calls "pro-poor growth," which amounts to an affirmative action strategy of capital investment that gives priority to those forms of investment that clearly benefit the poor.(49)

The international justice aspects of this growth/equity dilemma relate both to the duties to alleviate distress, which are specified as economic and social rights of those so victimized, and to the moral obligation to adopt policies that diminish inequalities between countries, regions, races and civilizations. These concerns are often considered in relation to the question of distributive justice and its applicability to a world of sovereign states.(50) These problems have recently intensified around the degree to which economic globalization, and its impacts on national economic policy, have diminished the capacity and will of governments to be compassionate toward their own citizens.(51) International institutions are important in gathering information about the degrees of deprivation and inequality, and the adaptation of the allocation of resources in response to equity concerns. The rethinking apparently underway on the part of the Bretton Woods institutions may well point toward a new balance between a purely economic view of growth and a more normative concern with overcoming human suffering and inequality.

(3) Reconciling the claims of present generations against claims of future generations.

In this period of extraordinarily rapid technological change, combined with evidence of environmental decay and depletion of resources, attention has been increasingly devoted to the justice claims of future generations.(52) International environmental treaty law has begun to acknowledge this obligation, and environmentalists have been urging a more rigorous application of "the precautionary principle" as one practical means of upholding the well-being of future generations. This principle urges that environmental risks be taken seriously as a guide to prudent behavior before conclusive scientific information is available to confirm the gravity of such risks.

This idea that international justice involves relations through time and space is gaining prominence. The distinction between temporal and spatial communities is crucial. For centuries, relations among territorially bounded sovereign entities called "states" (spatial communities) preoccupied discussions of world order. More recently, this spatial focus has been attenuated by a rising concern about grievances from the past and worries about the life circumstances of future generations--that is, with time dimensions that create identities among peoples (temporal communities).

International justice between spatial communities appears to be declining as a result of neoliberalism and globalization, as evidenced in the decline of foreign economic assistance in North/ South relations. International justice between temporal communities actually seems to be increasing, as evidenced by various expressions of greater sensitivity to past injustices and future dangers.

There has also been an upsurge in efforts to rectify the injustices of the past, and in some instances, the rather distant past. Some of these efforts have involved substantive redress, although more often the results are best conceived as symbolic. The recovery of Holocaust gold from Swiss banks and art treasures stolen by the Nazi regime are instances of substantive redress. Instances of symbolic redress, on the other hand, include apologies by Japanese leaders for atrocities committed against China and Korea during its imperial era, by President Clinton to African societies for the cruelties of slavery or by the Canadian government to indigenous peoples for their dispossession.

As with other dimensions of international justice, acceding to these claims and resolving historic grievances pose dilemmas that are not easily overcome. Present elites may resist circumscribing their own activities and refuse to invoke a moral obligation to satisfy the needs of those currently afflicted.

A related argument frequently posed is that technology almost certainly will, on balance, improve the lives of future generations by improving productivity and providing better medical attention. This contention has held true on a material level for almost two centuries, in relation to such yardsticks of well-being as longevity and literacy. To the extent that this argument is accepted, the present generation is relieved of any duty to restrain its consumptive patterns. If, on the other hand, the risks to the future involve a heightened probability of catastrophic climate change and pollution, then technological optimism, even if justified in some respects, is mainly beside the point.

Resistance to redressing past grievances includes the insistence that the behavior in question occurred within a different framework of values, and that present generations have no direct responsibility for the actions of their forebears. There is also some opposition based on the view that even symbolic forms of redress are unhealthy expressions of collective guilt or undermine a societal sense of self-worth. How to weigh this balance is subject to sharply

divergent viewpoints and is likely to be determined in the end by the play of political forces.

There are many concerns about the future and unresolved past grievances that call attention to the degree to which the pursuit of international justice involves the axis of time--an increasingly important focus for normative energies.(53) International institutions can play a role in giving concrete meaning--in the form of specific prohibitions or through protective measure--to either claims of forebearance in view of future risks of harm or grievances derived from the past. Especially with regard to contested views surrounding past events, institutions that embody commissions of experts or moral authority figures can play a constructive role in the search for acceptable solutions.

(4) Reconciling claims of the dominant political and social order against the grievances of marginalized groups. A major preoccupation of recent decades has been to evolve a framework of law for overcoming several forms of noneconomic inequality. This effort has focused on the protection of human rights and involves overcoming certain systemic forms of injustice. The pursuit of international justice, then, is a matter of diminishing the levels of agreed-upon injustice associated with unacceptable types of inequality and vulnerability on matters of race, gender, religious belief, civilizational orientation and children.

International institutions have played a crucial role in this process, generating authoritative norms by way of lawmaking treaties, declarations and reports on practice. One of the most impressive achievements of the United Nations in its first half-century has been to provide the peoples of the world with the normative architecture of a comprehensive human rights system. Such a development has assumed great practical relevance because of three complementary developments: first, the rise of transnational nongovernmental organizations (NGOs) devoted to human rights, which have used their access to information about violations to promote compliance; second, the effectiveness of human rights as an instrument of struggle in the resistance movements in Eastern Europe during the 1980s and the anti-apartheid campaign that ousted the overtly racist regime in South Africa; and third, the weight lent to human rights by its partial integration into foreign policy by some major states.

Other notable factors have also added to the overall effort to implement human rights as an element of international justice. Perhaps most dramatic of all has been the European system on human rights. This mechanism includes judicial remedies, a respected regional court and the possibility that an individual can secure protection from abuses against her/his own government. The respect accorded this system and its substantive contributions suggest a model for other regions that has already been emulated to some degree in Latin America and to a modest extent in Africa, Asia and the Middle East. Also helpful in some settings has been the reluctance of the World Bank and the IMF to extend support to countries with particularly poor human rights records.

This positive picture is not, unfortunately, the whole story. Geopolitical factors make the political reinforcement of human rights norms uneven, leading to perceptions of double standards and accusations of hypocrisy. Cultural practices may contradict human rights norms in ways that are exceedingly difficult to challenge effectively even if the territorial government acts in good faith. This is particularly true when long-entrenched religious beliefs oppose movements toward overcoming injustice, as in relation to the treatment of women.

Since Indian independence, for instance, the central government has formally and sincerely subscribed to secularism and international human rights standards, but has often seemed helpless at the level of implementation where such standards challenged fundamental cultural practices, such as those involving discrimination against women. This inability was especially manifest at the village level where the national commitment to secularism had rarely made an impact on traditional Hindu culture. The control of the Indian government is now in the hands of a coalition led by the Bharatiya Janata Party, a political party that has attempted to incorporate Hindu nationalism into its political agenda. Consequently, even the commitment to secularism is now open to doubt, further complicating the practice of overcoming discrimination against women. Specifically, where cultural norms and populist preferences strongly conflict with legal norms, it is difficult for the latter to prevail without a political struggle at the grass-roots level.

The most pervasive forms of injustice are difficult to overcome because their existence is embedded in the deep structure of power and privilege. Two illustrations clarify the difficulty. Male dominance of structures of authority and decisionmaking in all sectors of society is so pervasive that it is still treated as natural, despite important inroads made by feminism and the global human rights movement. Second, the modernist assumptions of society are so strongly held that efforts by indigenous peoples to retain their traditional ways of life are poorly understood and rarely appreciated beyond a small circle of sympathizers. In effect, established patterns--even if abusive--are very difficult to challenge effectively, especially by those at the margins of society by reason of their civilizational orientation or economic and low social status.

Some positive movement-based steps are being taken. Women and indigenous peoples have established their own networks and pressure groups that operate in institutional arenas throughout the world. The U.N. system has provided formal and informal arenas for both women and indigenous peoples to develop their own programs of action. Some concessions have been achieved by these transnational initiatives associated with an emergent global civil society. During the first half of the 1990s, such marginalized social forces made particularly good use of global conferences, under U.N. auspices, to put their grievances on the world policy agenda.(54) Indeed, these efforts were so successful that a statist backlash was induced, expressed by way of budgetary concerns and the deriding of such events as "spectacles" that serve no useful purpose. Cost cutting is often used here as an excuse to mask the real concern of the established international order and its representatives with the threatening rise of transnational social forces. It has been widely noticed that the U.N. conferences provided such forces with increased political leverage and media access that was eroding governmental control over policy outcomes with respect to such sensitive issues as abortion, the role of women, environmental regulation and financial responsibility. As a result, these international institutional arenas of authority are not nearly as likely to be available in the decade ahead, and this vehicle for the pursuit of international justice has been lost, at least temporarily

This terrain is exceedingly complex and the results are inconclusive at this point. A normative framework exists that supports those struggling against varieties of acute inequality. Activists representing the main victim constituencies are organized as never before. At the same time, entrenched structures are difficult to reform in fundamental respects, and the interests of elites are generally aligned with the established order and its implicit assumptions about superiority and inferiority This agenda of issues relating to cultural modes of inequality definitely deserves to be included in any contemporary inquiry into the pursuit of international justice. Such inclusion is virtually assured by the salience of such issues in state/society relations of almost all countries in the world at the present time.

(5) Reconciling the practices of leading states with the standards of international law that prohibit all forms of aggression.

A core goal associated with international justice has been minimizing the role of violence and warfare on all levels of political interaction, especially in the relations among states. There remains a fundamental disagreement about how such goals can be achieved given the structures and character of international society. The control of world politics remains firmly in the hands of realists--ideological descendants of Machiavelli--who believe that only countervailing power, combined with a credible will to use force if provoked, can maintain peace and stability in the world. Within this perspective, nuclear weaponry, perceived as being an indispensable instrument of geopolitical management and dangerous only to the extent that these weapons fall into the wrong hands, remains a generally constructive stabilizing influence. On this basis, priority is accorded to anti-proliferation efforts, and nuclear disarmament is perceived as politically unattractive and generally contributing to a less successfully managed world order.

The contrasting view has been that peace and justice in the world are best preserved by moving away from geopolitical management in favor of collective security, as embodied in the United Nations under the specific authority of the Security Council. The weakness of this challenge to realism is confirmed by the extent to which the United Nations incorporates the ideas it opposes. The Security Council is itself a geopolitical instrument, giving each permanent member veto power, conducting its sensitive discussions in secret and operating without any constraints that are not self-imposed. Consequently, the United Nations faithfully reflects prevailing patterns of geopolitics. It was largely gridlocked during the Cold War by the bipolar rivalry, and subsequently has been mainly responsive to the United States as the manager of unipolar geopolitics.(55)

The sharp ideological lines of debate are reductive, missing many valuable roles played by the United Nations. From time to time the United Nations does lend support to anti-aggression norms and to closely-related efforts to achieve other goals of international justice. The Security Council, partly in compensation for a failure of geopolitical will, established the war crimes tribunals in The Hague and Arusha, Tanzania to address respectively the most severe wrongs associated with the breakup of the former Yugoslavia, beginning in 1990, and the genocidal outbreak in Rwanda during 1994. Furthermore, in mobilizing widespread support for opposing Iraq's conquest of Kuwait in 1990, the United Nations managed to act effectively against Iraq's blatant aggression directed at another member of the organization.(56)

An important secondary arena of controversy involves responses to intranational conflicts that are causing great human suffering. The issue has surfaced in the past decade in relation to whether the United Nations should serve as an agency for humanitarian intervention, and if so, whether it can do so successfully Here, the relevance of geopolitics becomes evident. International institutions cannot act effectively unless their undertakings converge with the strategic interests, as well as the normative sentiments, of the geopolitical managers. Such were the painful lessons of Somalia, Bosnia and Rwanda.(57) There is also the legalist critique that relates international justice to adherence to international law. The original contract embedded in Article 2(7) of the U.N. Charter precludes intervention in domestic affairs of states. It can be maintained that such a constraint also recognizes a prudent limit on what can be expected from the United Nations given the persistence of geopolitical management of power and the consequent failure of the United Nations to command resources or independent peacekeeping capabilities.

So far as the nature of international justice is concerned in relation to uses of force, the core issues remain unresolved. An uneasy, suppressed tension exists between, on the one hand, legalist preferences for compliance with international law and a gradual transfer of security functions to international institutions. On the other, there are geopolitical preferences for configuring available power in such a manner as to discourage and punish anti-social behavior by irresponsible and evil political actors, pariah states and terrorist movements.

TOWARD HUMANE GOVERNANCE

International justice has so far been considered under the nonideal conditions of the established world order that is evolving in the direction of some form of global governance. Whether this transition process that appears to be superseding the Westphalian idea of territorial sovereignty is leading humanity toward a beneficial form of global governance is unclear at present. Contradictory trends are evident.

It seems appropriate to end with a few indications of the positive prospects for refraining the pursuit of international justice. It needs to be emphasized that, at present, these prospects seem marginal to the main drift of change in the direction of a highly marketized, unsustainable and grossly unequal set of relations among the peoples of the world, with weak structures of legal authority and even weaker sentiments of human solidarity. Happily, our historical insight is often flawed, ignoring concealed forces. Such was the case with respect to the abrupt end of the Cold War and the Soviet collapse, as well as the peaceful dismantling of apartheid in South Africa. We do not understand political reality well enough to be pessimistic or, for that matter, optimistic.

What is positive can be identified in summary form: (1) The gradual realization that warfare among major, technologically advanced states is an obsolete form of conflict resolution, particularly given the increasingly nonterritorial bases of wealth and power; (2) The emergence of transnational networks of activists motivated by a commitment to human rights, the environment, humanitarian diplomacy, economic well-being and civilizational dialogue; (3) The widespread adherence to democratic ideals as the moral foundation of humane governance in all arenas of authority and decision, including support for a vision of cosmopolitan democracy as the next stage of constitutionalism; (4) The beginnings of an ethos of criminal accountability that contains no exemptions for political leaders and is being implemented at the global level under the universal rubric of punishing anyone guilty of crimes against humanity and through moves to establish a judicial institution of global character with such a mandate; and (5) The strong move toward integration at regional levels, with accompanying shifts in allegiance away from the nation-state, moving outward in relation to species, civilization and region, and inward toward local community identities.(58)

Whether these positive elements can be fashioned in such a way as to lead toward humane governance--and the more ambitious realization of international justice--remains uncertain. What is more evident is that such an outcome will be far more likely to the extent that it engages the peoples of the world and their associations in the struggle. In essence, the future will be what we make it. In this regard, inaction and withdrawal make us partially responsible if the future emerges in ways that are distressing.

(1) The most influential considerations by Plato are contained in The Laws and The Republic, both texts contained in Edith Hamilton and Huntington Cairns, eds., Plato: The Collected Dialogues (Princeton, NJ: Princeton University Press, 1961) pp. 575-844, 1225-1513; and in Trevor J. Saunders, ed., Book III: The Politics of Aristotle (Middlesex, England: Penguin Books, 1981) pp. 167-232. Both philosophers considered justice to be the result of a citizen's personal virtue, although Aristotle connects justice with ideas of distributive equity and with "the golden mean" of moderation between extremes. John Rawls, in A Theory of Justice (Cambridge, MA: Harvard University Press, 1971) provides a contemporary rearticulation of the character of justice as pertaining to organized society rather than to the human condition. See also Derek L. Phillips, Toward a Just Social Order (Princeton, NJ: Princeton University Press, 1986). In more recent writings, Rawls has given a global dimension to his views about political benevolence. See John Rawls, "The Law of Peoples," in On Human Rights: The Oxford Amnesty Lectures 1993, ed. Stephen Shute and Susan Hurley (New York: Basic Books, 1993) pp. 41-82. Rawls draws strongly on the emergence of a universally endorsed human rights framework for establishing conditions of political legitimacy in state/society relations. For Amartya Sen's ideas, which involve a view of international justice as based on the promotion of "equality of capabilities," see Amartya Sen, Inequality Reexamined (Cambridge, MA: Harvard University Press, 1992).

(2) Thomas Hobbes, Leviathan: On the Matter, Forme and Power of a Commonwealth Ecclesiasticall and Civil, trans. and ed. Michael Oakshott (New York: Collier, 1962). For an exposition of this central theme in Western thought, see Francis H. Hinsley, Power and the Pursuit of Peace (Cambridge, England: Cambridge University Press, 1963). For an illuminating discussion of how sovereignty was linked to a conception of international political life as essentially a war zone, see R.B.J. Walker, Inside/ Outside: International Relations as Political Theory (Cambridge, England: Cambridge University Press, 1993).

(3) For a useful survey of this evolution, see Frank Parkinson, The Philosophy of International Relations: A Study in the History of Thought (Beverly Hills, CA: Sage, 1977).

(4) For natural law countertraditions, see Otto van Gierke, Natural Lave and the Theory of Society, 2 vols. (Cambridge, England: Cambridge University Press, 1934); and E.B.F. Midgley, The Natural Lave Tradition and the Theory of International Relations (London: Paul Elek, 1975).

(5) For a favorable assessment along these lines, see J.B. Scott, The Spanish Origin of International Lave, 1, Francisco de Vittoria and His Law of Nations (Oxford, England: Clarendon Press, 1934). For a skeptical presentation of Spanish contributions, see Arthur Nussbaum, A Concise History of the Lave of Nations, 2d ed. (New York: Macmillan, 1954).

(6) The initial edition of 1646 was published in Amsterdam, translated to English from Latin and published in Francis W. Kelsey, ed., Classics of International Law, 2 vols. (Oxford, England: Oxford University Press, 1925). For a useful overview of Grotius' life, work and influence, see Charles S. Edwards, Hugo Grotius, The Miracle of Holland: A Study of Legal and Political Thought (Chicago: University of Chicago Press, 1981).

(7) Two extremely valuable interpretations of the contemporary relevance of Grotius are contained in Yasuaki Onuma, ed., A Normative Approach to War: Peace, War, and Justice in Hugo Grotius (Oxford: Oxford University Press, 1993); and Hedley Bull, Benedict Kingsbury and Adam Roberts, eds., Hugo Grotius and International Relations (Oxford: Oxford University Press, 1990). I have argued that Grotius is peculiarly relevant to our own era because we are in transition from a world of states to a globalized order assuming some as yet undetermined structure of authority and influence. I identified this indeterminacy as "a Grotian moment" (Edwards, preface by Richard Falk, pp. viii-xxi.)--awaiting a Grotius capable of synthesizing the Westphalian legacy and the emergent globalism.

(8) Bodin, in his Les Six Livres de la Republique published in 1577, was primarily concerned with rationalizing the rise of the centralized state against the more local claims of autonomy by feudal lords. Vattel, in Le Droit des Gens and other works, carried the analysis into the relations among sovereign states, arguing that the sovereignty of the state was the final authority, making international law rest exclusively on the consent of the state. Both authors were very helpful in providing justifications for behavioral trends and dominant political projects in their distinct historical circumstances. Such views gave rise to the jurisprudential tradition of legal positivism that remains predominant. Vattel's views were also consonant with realist views of international relations as the security of the state was posited as the highest obligation of those acting on behalf of the state. See Emmerich de Vattel, The Law of Nations in Carnegie Classics of International Law, trans. and ed. Charles Fenwick (Washington, DC: Carnegie Institute, 1916).

(9) Compare Hersch Lauterpacht, "The Grotian Tradition in International Law," British Yearbook of International Law, 8 (1946) pp. 1-53 with Hedley Bull, "The Grotian Conception of International Society," in Diplomatic Investigations: Essays in the Theory of International Politics, ed. Herbert Butterfield and Martin Wight (Cambridge, MA: Harvard University Press, 1966) pp. 51-73.

(10) Bull (1966) pp. 51-73. See also R. John Vincent, Nonintervention and International Order (Princeton, NJ: Princeton University Press, 1974); and several of the contributions to Hedley Bull, ed., Intervention in World Politics (Oxford, England: Oxford University Press, 1984).

(11) Such is the thesis of Richard Falk, Law in an Emerging Global Village: A Post-Westphalian Perspective (Ardsley, NY: Transnational, 1998) especially chap. 1.

(12) To borrow Hedley Bull's very fertile and influential formulation of the minimalist position. See Hedley Bull, The Anarchical Society (New York: Columbia University Press, 1977). See the important book by Kenneth Waltz, Man, The State, and War (New York: Columbia University Press, 1959) that explores the main proposed pathways of escape from the war system. The thinking about justice in international society has for centuries been almost exclusively preoccupied with the problem of war until the recent preoccupation with the world economy. For two of the most helpful studies see Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977); and W.B. Gallie, Philosophers of War and Peace (Cambridge, England: Cambridge University Press, 1978). My own assessment is set forth in Richard Falk, Legal Order in a Violent World (Princeton, NJ: Princeton University Press, 1968).

(13) See Sylvester John Hemleben, Plans for World Peace Through Six Centuries (Chicago: University of Chicago Press, 1943). For a survey of such proposals since 1945, see Wesley T. Wooley, Alternatives to Anarchy: American Supranationalism since World War II (Bloomington, IN: Indiana University Press, 1968).

(14) Perhaps the foremost example is Arthur N. Holcombe, A Strategy of Peace in a Changing World (Cambridge, MA: Harvard University Press, 1967). For a more recent example of this genre, see James A. Yunker, World Union on the Horizon (Lanham, MD: University Press of America, 1993).

(15) There are also many suspicions, especially in the countries of the South, about such grandiose proposals emanating from the existing Western power centers of the world. This "ethic of suspicion" is well articulated in Rajni Kothari, Footsteps into the Future: Diagnosis of the Present World and a Design for an Alternative (New York: Free Press, 1974) especially pp. xix-xxiii; and Ali Mazrui, A World Federation of Cultures: An African Perspective (New York: Free Press, 1976) especially pp. 1-15.

(16) My attempt to propose drastic global reform in this vein is contained in Richard Falk, A Study of Future Worlds (New York: Free Press, 1975) especially pp. 150-349.

(17) Such a functionalist approach was initially developed in David Mitrany, A Working Peace System (London: Royal Institute of International Affairs, 1943). It was subsequently elaborated upon, and modified, in Ernst B. Haas, Beyond the Nation-State: Functionalism and International Organization (Stanford, CA: Stanford University Press, 1964).

(18) Grenville Clark and Louis B. Sohn, World Peace through World Law, 3d ed. (Cambridge, MA: Harvard University Press, 1966). Their proposals took the form of an article by article revision of the U.N. Charter. Clark and Sohn tackled the problem of attainability by offering incentives to the developing countries of the South in proposing the establishment of an equity fund, constitutional guaranties about the limits of U.N. authority, a peace force and disarmament as a means to secure order on the basis of real collective security.

(19) This view underlies a recent assessment of the United Nations as continuing to be subject to statist constraints. See Gene M. Lyons and Michael Mastanduno, eds., Beyond Westphalia? State Sovereignty and International Intervention (Baltimore, MD: Johns Hopkins University Press, 1995).

(20) Immanuel Kant, "Perpetual Peace," in Kant's Political Writings, ed. Hans Reiss (Cambridge, England: Cambridge University Press, 1970).

(21) The work that most directly inspired this intense renewal of interest in Kant's hypothesis was, of course, that of Michael Doyle. See Michael Doyle, "Kant, Liberal Legacies, and Foreign Affairs," Philosophy and Public Affairs, 12, nos. 3 and 4 (Summer and Fall, 1983) pp. 205-254, 323-353. See also Michael Doyle, Ways of War and Peace: Realism, Liberalism, and Socialism (New York: W.W. Norton, 1997) especially pp. 251-300, 474-484.

(22) See Thomas Franck's influential article, "The Emerging Right to Democratic Governance," American Journal of International Law, 86, no. 1 (January 1992) pp. 46-91.

(23) For a more complete exposition of this line of thinking, see various seminal writings by David Held. In particular, David Held, Political Theory and the Modern State (Cambridge, England: Polity Press, 1989); and David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Stanford, CA: Stanford University Press, 1995). See also Daniele Archibugi, David Held and Martin Kohler, eds., Re-imagining Political Community: Studies in Cosmopolitan Democracy (Cambridge, England: Polity Press, 1998).

(24) Among the many studies of these developments, the following are important: Robert B. Reich, The Work of Nations: Preparing Ourselves for the 21st Century (New York: Knopf, 1991); Kenichi Ohmae, The End of the Nation State: The Rise of Regional Economies (New York: Free Press, 1995); Joseph Camilleri and Jim Falk, The End of Sovereignty? The Politics of a Shrinking and Fragmenting World (Hants, England: Edward Elgar, 1992); and William Grieder, One World, Ready or Not: The Manic Logic of Global Capitalism (New York: Simon & Schuster, 1997).

(25) Richard Falk, Predatory Globalization: A Critique (Cambridge, England: Polity Press, forthcoming).

(26) See Kofi Annan's corrective proposals at the Davos World Economic Forum in 1998, proposing a dual partnership of the United Nations with the world of business and finance on one side and with representatives of civil society on the other. See Laura Silber, "UN Reformer Looks for New Friends in World of Business," Financial Times (London), 17 March 1998, p. 7.

(27) For representative writings derived from WOMP in its three main phases, see Saul H. Mendlovitz, ed., On the Creation of a Just World Order (New York: Free Press, 1975); R.B.J. Walker, One World, Many Worlds (Boulder, CO: Lynne Reinner, 1988); and Richard Falk, On Humane Governance: Toward a New Global Politics (University Park, PA: Pennsylvania State University Press, 1995).

(28) For an attempt to specify "humane governance" see Falk (1995). For a somewhat parallel effort see The Commission on Global Governance, Our Global Neighborhood (Oxford, England: Oxford University Press, 1995).

(29) See Bruce Rich, Mortgaging the Earth: The World Bank, Environmental Impoverishment, and the Crisis of Development (Boston: Beacon Press, 1994).

(30) See symposium issue, "War Crimes Tribunals: The Record and the Prospects," American University. International Law Review, 13, no. 6 (1998) pp. i-xi, 1383-1584.

(31) Thomas Franck has made by far the most comprehensive and useful attempt to do just this in his impressive book, Fairness in International Law and Institutions (Oxford, England: Oxford University Press, 1995).

(32) For a helpful explanation of global governance, see The Commission on Global Governance, pp. 2-7.

(33) For an overall critique of this framework, see James N. Rosenau, Turbulence in World Politics: A Theory of Change and Continuity (Princeton, NJ: Princeton University Press, 1990). On the idea of global civil society, see Richard Falk, "Global Civil Society: Perspectives, Initiatives, Movements," Oxford Development Studies, 26, no. 1 (1998) pp. 99-110. See also Ronnie D. Lipschutz, Global Civil Society and Global Environmental Governance (Albany, NY: State University of New York Press, 1996).

(34) See Franck (1995) for appraisal in careful, yet generally positive terms. For a skeptical, statist backlash view of international institutions, see John J. Mearsheimer, "The False Promise of International Institutions," International Security, 19, no. 3 (Winter 1994/95) pp. 5-49. See also the responses by Robert O. Keohane and Lisa L. Martin, "The Promise of Institutionalist Theory," International Security, 20, no. 1 (Summer 1995) pp. 39-51; Charles A. Kupchan and Clifford A. Kupchan, "The Promise of Collective Security," International Security, 20, no. 1 (Summer 1995) pp. 52-61; John Gerard Ruggie, "The False Premise of Realism," International Security, 20, no. 1 (Summer 1995) pp. 62-70; Alexander Wendt, "Constructing International Politics," International Security, 20, no. 1 (Summer 1995) pp. 71-81; and Mearsheimer's response, John Mearsheimer, "A Realist Reply," International Security, 20, no. 1 (Summer 1995) pp. 82-93.

(35) For a balanced assessment of such harm even prior to the ravage wrought by the 1997-1998 Asian economic crisis, see Human Development Report 1997, United Nations Development Programme (New York: Oxford University Press, 1997) especially pp. 82-93. On the effects of the economic crisis on Indonesia see Rawdon Dalrymple, "Indonesia and the IMF: The Evolving Consequences of a Reforming Mission," Australian Journal of International Affairs, 52, no. 3 (November 1998) pp. 233-239; and Marcus W. Brauchli, "Was the World Bank Part of Indonesia's Problem?" Asian Wall Street Journal (Hong Kong), 15 July 1998, p. 1.

(36) Ken Booth, "Human Wrongs and International Relations," International Affairs, 71, no. 1 (January 1995) pp. 103-126.

(37) It is correct that economic globalization has lifted millions from poverty, but there is no evidence that it can by its own dynamics reach those who are not able to participate productively in the market. See Reich (1991); and advocacy of "pro-poor growth" in United Nations Development Programme, pp. 94-116.

(38) George F. Kennan, American Diplomacy 1900-1950 (Chicago: University of Chicago Press, 1951); Henry Kissinger, Diplomacy (New York: Simon & Schuster, 1994); Barry Buzan, Charles Jones and Richard Little, The Logic of Anarchy: Neorealism to Structural Realism (New York: Columbia University Press, 1993); and Bull (1977).

(39) For a range of views, see Robert Keohane, ed., Neorealism and its Critics (New York: Columbia University Press, 1986). For an ultra-statist and geopolitically oriented view, see Mearsheimer (Winter 1994/95).

(40) There are, however, realist arguments for the instrumental use of international institutions in relation to the foreign policy goals of the U.S. government. For example, see Thomas M. Franck, Nation Against Nation (Oxford, England: Oxford University Press, 1985) on the United Nations; and Thomas M. Franck, Judging the World Court (New York: Priority Press, 1986) especially pp. 53-76 on the International Court of Justice.

(41) See Kissinger's extraordinary claim that American foreign policy has tended to be Wilsonian in character, that is, insufficiently interest-guided and excessively value-oriented in Kissinger, especially pp. 805-834.

(42) For various formulations, see Neil Barrett, The State of Cybernation: Cultural, Political, and Economic Implications of the Internet (London: Krogan Page, 1996); Mark Dery, Escape Velocity: Cyberculture at the End of the Century (London: Hodder & Stoughton, 1996) especially pp. 1-18, 227-319; and Mike Featherstone and Roger Burrows, eds., Cyberspace/Cyberbodies/Cyberpunk: Cultures of Technological Embodiment (London: Sage, 1995) especially pp. 1-19.

(43) Blair evidently borrowed the term "the Third Way" from Anthony Giddens' recent influential book with the same title. See Anthony Giddens, The Third Way (Cambridge, England: Polity Press, 1998). Giddens argues that the way forward politically is to borrow from both neoliberal and social democratic orientations to shape a new politics that is both business-friendly and socially empathetic, while avoiding the dogmatic extremes of either unconditional deference to market forces or an uncritical endorsement of the welfare state. The emphasis of the Third Way is upon minimizing the intrusiveness of the state without overlooking the special needs of the poor and jobless. Whether this approach is genuinely new or merely masks a shift to the right by the old left-of-center is difficult to say at this point.

(44) The Internet is a complex technological revolution that is having many transformative effects of a beneficial character, including creating new democratizing opportunities. For the most comprehensive assessment of a generally favorable character, see Manuel Castells, The Information Age: Economy, Society and Culture (Oxford, England: Blackwell, 1996-98). My stress here is on the negative effects that arise from the ideological pressures on business and the market consistently being advocated by the most influential editorial cybervoice, that of WIRED Magazine.

(45) The standard definition of crimes against humanity is that given in Principle VI(c) of the Nuremberg Principles as formulated in 1950 by the International Law Commission: "Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecution on political, racial or religious grounds, when such acts are done or such persecutions carried out in execution of or in connexion with any crime against peace or any war crime." Crimes against humanity have now evolved to the point where the connection with other crimes is no longer considered to be a necessary element of indictment and prosecution. Genocide is defined in Article II of the Genocide Convention of 1948 as follows: "... genocide means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its destruction in whole and in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of a group to another group." For relevent texts, see Burns H. Weston et. al., eds., Supplement of Basic Documents of International Law and World Order (St. Paul, MN: West Publishing, 1997) pp. 197, 373.

(46) For assessment along these lines, see many of the contributions in Jerry Mander and Edward Goldsmith, eds., The Case Against the Global Economy (San Francisco: Sierra Club, 1996).

(47) Nancy Fraser, Justice Interruptus: Critical Reflections on the "Postsocialist" Condition (New York: Routledge, 1997) p. 11.

(48) United Nations Development Programme, Human Development Report (New York: Oxford University Press, 1997) especially pp. 9-10.

(49) ibid, pp. 94-116.

(50) The idea of distributive justice is concerned with fair distribution among the relative membership of a community. Equality is one conception of fairness, but not the only one. The duty of the rich to ensure distribution sufficient to meet the basic needs of the poor would be one approach to the implementation of distributive justice. Distributive justice is often contrasted with retributive justice, which is concerned with appropriate punishment or rectification for prior wrongs. For an important effort to conceptualize a distributive justice imperative on a global level, see Charles Beitz, Political Theory and International Relations (Princeton, NJ: Princeton University Press, 1979) especially pp. 125-176. See also Henry Shue, Basic Rights: Subsistence, Affluence, and US Foreign Policy (Princeton, NJ: Princeton University Press, 1980).

(51) For discussion along these lines, see Richard Falk (forthcoming). For the view that globalization has been hyped to convey the misleading impression that governments of states are losing their discretion to implement socially compassionate policies, see Paul Hirst and Grahame Thompson, Globalization in Question: The International Economy and the Possibilities of Governance (Cambridge, England: Polity Press, 1996).

(52) For influential depiction, see Edith Brown Welss, In Fairness to Future Generations (Dobbs Ferry, NY: Transnational, 1989).

(53) Normative energies are meant to invoke the combined influence of law, morality and religion, each of which is centrally concerned with realizing norms of human behavior.

(54) Among the more important of these conferences were the U.N. Conference on Environment and Development (1992), U.N. Conference on Human Rights and Development (1993), U.N. Conference on Population and Development (1994) and U.N. Conference on Women and Development (1995).

(55) The internal U.S. debate on the usefulness of the United Nations is also revealing of two contending views on the utility of the United Nations as an instrument to pursue national interests. It has turned into essentially a debate between those in the executive branch who believe the organization to be useful as a legitimating instrument of foreign policy, and conservatives in Congress who regard the United Nations as superfluous, and on occasion obstructive, with respect to the pursuit of national interests. This latter view believes that unilateralism is preferable.

(56) Such an achievement has been substantially compromised by maintaining the sanctions/inspection process over such a long period since the 1991 cease-fire, inflicting suffering on the people of Iraq without sufficient justification.

(57) See Richard Falk, "The Complexities of Humanitarian Intervention: A New World Order Challenge," Michigan Journal of International Law, 17 (Winter 1996) pp. 491-513.

(58) This latter tendency has some negative features, including demands for ethnic purification as the basis for political legitimacy as in the successor states of the former Yugoslavia. It may, however, take the milder form of giving up moves to claim self-determination for "a people," and the acceptance of autonomy arrangements combined with participation in larger regional frameworks--a process that seems to be softening Basque and Irish ultranationalism that has been responsible for years of civil violence and acute insecurity.

Richard Falk is the Albert G. Milbank Professor of International Law and Practice at Princeton University where he has been a member of the faculty since 1961. He is the author of more than 30 books, most recently Explorations at the Edge of Time: Prospects for World Order; Humane Governance: Toward a New Global Politics; and Law in an Emerging Global Village: A Post-Westphalian Perspective. He is also the author of two forthcoming books, Global Shock Waves: The Persistence of Terror, Terrorists and Terror-States and Predatory Globalization: Critique and Response. Dr. Falk is associated with a number of journals and magazines dealing with international legal issues and has been a member of the Independent World Commission on the Oceans since 1995. He received a B.S. in economics from the University of Pennsylvania, an L.L.D. from Yale Law School and a J.S.D. from Harvard University.
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Author:Falk, Richard
Publication:Journal of International Affairs
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Date:Mar 22, 1999
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