Last week I attended the first joint conference of the Asian Society of International Law and Australian and New Zealand Society of International Law, held at the Faculty of Law at the University of New South Wales. I was asked, along with Professor Zhu Wenqi of Renmin University of China Law School, to offer some reflections on the proceedings over the two day conference:
It is a great honour to be asked to offer some concluding reflections on this lively and interesting conference on international law and justice, although, I must say, that it seems manifestly unjust to ask Professor Zhu and myself to sum up two days of rich discussion in just a few minutes, with the words uttered in the final panels still ringing in our ears, and a lovely Friday afternoon in Sydney calling us outside. So I hope you will forgive me if my summation can deliver no more than summary justice to the ideas and arguments advanced in the many stimulating presentations that we have heard. The formidable challenge in drawing together in any meaningful way the many strands explored in this conference is trumped only by the metaphysical impossibility of being present at the many parallel sessions. Perhaps this was why we were given yellow conference bags at registration emblazoned with the imperative ‘Never to Stand Still’. Being able to attend only five from among 16 diverse panels with many distinguished speakers, what is the just thing to do? In the original position, behind a veil of ignorance which panels should be preferred? I settled for the opportunity for self-improvement, avoiding topics with which I have passing familiarity, and instead attending panels addressing topics about which I know much less, including those on international criminal law and justice, international financial and economic law, regionalism and diversity, international law in a rising Asia, and international law and security.
As Professor Mani noted in his remarks at the opening of the conference, the enduring tension between international law and justice provides a ‘sumptuous feast’ for discussion, and this conference has certainly not failed to fulfil. From this feast I can offer only a degustation of the recurring themes, at least as I saw them, across the varied panels I attended. The three themes I would like to focus upon are first the tension between procedural and substantive justice, second, the tensions between cosmopolitan justice and Asian or other particularised notions of justice, and third, the tension between justice and peace.
Turning first to substantive vs. procedural justice. International law is much better at attending to procedural justice than resolving hard questions of substantive justice. Most notably, international law is not oriented in any comprehensive way towards providing present and future generations with a fair share of the planet’s natural resources and ecosystem services. As Professor Gerry Simpson suggested in his remarks, the process of doing justice has spawned a hyperinstitutionalism in response to virtually every crisis and international disorder. This has resulted in an indescribably complex morass of procedures, that have become an end in themselves rather than a means to the end of realising substantive goals of justice
should be. The dilemmas of pursuing substantive justice through procedures of justice were thrown into stark relief by Susan Lamb in her account this morning of the challenges faced by the Cambodian Extraordinary Chambers. The Global Administrative Law project is one influential manifestation of the fascination with procedural justice, designed to bring transparency, participation, reasoned decision, legality and review to global governance – in short to instil liberal notions of procedural fairness. But as B S Chimni has noted, the GAL project depoliticises an essentially Western process, as institutions of international criminal law and collective security are co-opted at the expense of the South.
A focus on an apparently procedurally neutral justice can obscure substantive injustice. The was evident in Panel 2, the first of the conference’s four sessions on international and transnational criminal law and justice. Firew Kabede Tiba ably traced the imperial march of international criminal justice and procedure into Africa, beginning with an evocative quotation from Desmond Tutu as to how it is ‘we decide that Robert Mugabe should go the International Criminal Court, Tony Blair should join the international speakers' circuit, bin Laden should be assassinated’. Professor Zhu Wenqi continued the discussion of international criminal law, reminding us of China’s significant participation in the Tokyo Trials, and offering an assessment the prospects of China joining the International Criminal Court. Professor Zhu
challenged the assumption that non-ratification of the ICC is to be equated to hostility, and argued that China could be a friend of the Court, as seen in China’s non-exercise of its veto in UNSC Resolution 1973, which referred the Libyan situation to the Court. Although, as Andrew Garwood-Gowers told us this afternoon, China's non obstructionism on Resolution 1373 was less a beneficent gesture than a result of a unique confluence of political factors. Speaking on the experience of the International Criminal Tribunal for the Former Yugoslavia, Ambassador Arnaut highlighted the comfort the process has brought to the victims of atrocity, notwithstanding the many imperfections of the Tribunal. Finally Lorraine Finlay examined what to many appears a clear case of victor’s justice, the trial and execution of Saddam Hussein and others by the Iraqi High Tribunal. Concluding that it was more than the face of United States justice with an Iraqi mask, Lorraine exhorted perseverance in the project of international criminal justice, noting that the perfect should not be the enemy of the good, to which Gerry Simpson responded in the questions, whether we have actually lowered our expectations of international criminal justice too far, and pointing out that the greater enemy of the perfect is the worst, not the best.
Panel 6, which examined international financial, economic and investment law also revealed aspects of the procedure/substance distinction. Professor Chi Manjiao examined the delicate negotiation underway in China’s utilisation of the WTO’s dispute settlement procedure; identifying the law of unintended consequences, what he termed spill over effects from major trade cases, that could challenge the social,
cultural and political status quo in China, by for instance, undermining its censorship system. He Ling Ling and Razeen Sappideen discussed another dispute settlement procedure, arbitration under investment treaties, and the Australian government’s recent decision to drop investor-state dispute resolution procedures from future agreements. This for me promoted once again the question whether it is always the
case that more procedure means more justice, particularly when we reflect on the strategic way in which investor state arbitration has been used to attack government policies on environmental protection or human health, as shown most clearly by the Phillip Morris case against the Australian government in respect of its cigarette packaging laws.
The substance/procedure distinction can be seen more broadly as one aspect of the distinction between justice and law, between an instrumental vision, and a formal, proceduralised conception of law. In her plenary address, Shirley Scott spoke of the minimal conditions of cosmopolitan justice embedded in the Vienna Convention on the Law of Treaties, which renders void by Article 52 any treaty the conclusion of
which is procured by the threat or use of force, but which leaves standing a manifestly unjust treaty, so long it was entered into freely. This is a reaffirmation of justice as procedural justice, stripped of a broader conception. In his address in the plenary session Professor Tony Anghie explored this dynamic from an historical perspective, charting the original congruence of law and justice in the natural law tradition, that was overthrown by the emergence of the sovereign state, and with Austinian positivism ushering in a new the polarity between morality and international law. Gone are the certainties with which Christopher Columbus could claim the Americas in the name of law and justice, and this is a good thing. But Professor Anghie spoke, provocatively, of a new naturalism in which the quest for economic development has become the new theology binding developing and developed states alike, conditioning governmental legitimacy, and even sovereignty itself, upon economic growth. In his presentation in Panel 6 on international financial and economic law, Ross Buckley unmasked another aspect of this new naturalism,
the tremendous expansion of the global financial system which has taken place largely outside of law, or at least beyond the purview of law to control. He made a forceful case for a form of the Tobin tax, a minute impost on an indescribably large body of financial transactions, which could raise half a trillion dollars and could go to redistributive ends, including climate adaptation.
If I might continue for a moment on the procedure/substance divide, 2012 has been a major year for restatement but also rebalancing of formalism and instrumentalism within the ICJ. In the Jurisdictional Immunities of the State Case, decided in February, the Court concluded that the procedural guarantee of foreign state immunity in domestic courts could not be overturned, and indeed was not in reality in conflict with, the peremptory prohibition of serious international crimes. As the Court said, ‘[t]he rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon….whether or not the
conduct in respect of which the proceedings are brought was lawful or unlawful.’ Yet in a decision a few months later a far more cosmopolitan and substantive vision of justice was embraced by the Court in Questions Relating to the Obligation to Prosecute or Extradite, in which it found, clearly for the first time, that any state party to a convention establishing obligations erga omnes partes, in this case the Convention Against Torture, could invoke the breach of that convention in order to advance its higher common purpose, in the case of the Torture Convention being the prevention of torture, and the prosecution of is authors. Just how radical this change is, in aligning procedure to the aims of substantive justice, is seen in Judge Xue's dissenting judgment in which she argues for the status quo in Article 42 and not Article 48 of the ILC's Articles on State Responsibility.
Turning now to universal or cosmopolitan justice vs. regional and other particularised visions of justice. This was a theme explored in many presentations throughout the conference, which is of course to be expected in a conference involving the Asian Society of International Law occurring at the dawn of the Asian Century in which approaches to international law in this region will receive ongoing attention. Her Excellency Judge Xue noted that while justice is a basic tenet of all legal systems, its manifestation in particular social contexts renders it in some ways an indeterminate concept. Judge Xue spoke of distinctive Asian Pacific approaches to justice, emphasising in particular distributive justice. And Professor Anghie, answering a question from Professor Chesterman observed that in this respect sovereignty itself can be a mechanism of justice, allows for diversity by providing for states to pursue self-determined visions of justice particular to their community. This is the positive vision of sovereignty as a barrier against intrusive interference, and I know was the subject of several presentations in other sessions, including this afternoon which explored the various possible meanings ascribable to the Responsibility to Protect doctrine. In Panel 9 on regionalism and diversity in theory and practice we were treated to a very lively discussion on Eurocentrism in international law by two Japanese scholars, Professor Onuma Yasuaki and
Professor Toyoda Tetsuya, which resulted in an accommodation of sorts being reached on the limits of the Eurocentric critique of international law. But it struck me this morning in the discussions of international law that in the Asian century, as Sarah McCosker held up the latest issue of Foreign Affairs with the heading screaming Europe Kaput!, that we may soon need to think about Asian centrism in international law. Catherine Renshaw explored the role of regional institutions in pursuing justice, explaining the combination of principled and pragmatic reasons that have been raised for devolving global power to regional scales to achieve justice. Taking us across a variety of regions, and historically from Churchill’s
proposal at Dumbarton Oaks for regional councils to be tasked with peacekeeping duties, she spoke of the role that regional organisations can sometimes, but not always, play in contributing useful pieces to the puzzle of piece.
Turning finally to the third theme that has been particularly prominent throughout the conference, that is to the tension between justice and peace. Judge Xue spoke of the value of peace and stability as a precondition for the attainment of justice, noting that the quest for peace cannot be dismissed as a secondary consideration, it is the primary value. Gerry Simpson’s presentation spoke of the delegations at the Peace of Westphalia knowing they were against justice, but which gave rise to the system of sovereignty that, coupled much latest with the prohibitions on force and intervention in the 20th century, provided some protection against injustice. The UN Charter balances, as Judge Xue noted, several values that are sometimes in opposition – peace, security, justice, human rights and development. But above all it privileges peace over justice, on the premise that it is better to have an unjust peace than a never-ending conflict waged under the banners of just war. It is a Faustian bargain, trading the soul to preserve the body. But the Charter compromise reached in the aftermath of the Holocaust does not, cannot do, away with justice altogether, as its absence produces the conditions for conflict and conflagration. And so, as
Robert Cooper argues in his book The Breaking of Nations, justice in the Charter ‘originates not in the desire of the weak for protection, but in the tragic experience of the strong’. In my view, the contemporary policy arena raising the most acute dilemma in balancing justice and peace is protecting our life support system, the biosphere. Paul Govind examined environmental challenges and environmental justice, pointing to the elements of justice in the climate change regime, but despite the lofty references in the UN Framework Convention for Climate Change to justice, I think, unfortunately, that justice may be dead, as new emitters like China overtake the historical ones, and the urgency of the need for a response hits home. Can or will states persevere with the niceties of justice when the very material conditions for survival are under threat?
So to conclude by asking the question posed in the call of papers for this conference – can international law really be an instrument of justice? In his remarks yesterday Professor Andrew Byrne invoked Oscar Schachter’s familiar image of the invisible college of international lawyers, all united, at least to some degree, by common assumptions, including the imperative of global justice. The appeal of turning to justice in testing the legitimacy of institutions of global governance is that it offers an ethically principled basis for the distribution of benefits and burdens, and one that it well-suited to expression in legal form. Although she didn’t ask for a show of hands among us, Shirley Scott in the first plenary suggested that there were factions in this invisible college, between the visionaries in the room measuring international law against the ruler of some ideal of justice, the practitioners amongst us engaged in the active pursuit of justice for our clients, and the government lawyers at the political coalface, having to reach an accommodation between justice and power. For me the chief value of this very first joint conference of the Asian, Australian and New Zealand societies of international lawyers such as this, is not in producing a strong shared vision of justice. Which is surely impossible, even if it were desirable. There is no point for a quest, with apologies to Superman, for ‘truth justice and the Asian way’. But the dialogue we have engaged in can produce a shared commitment to asking touch questions about whether the work we do as members of an invisible college of international lawyers in Asia in the Asian century makes some small contribution to the achievement of justice. It was striking to hear that Sarah McCosker and Damien van der Toorn, two of Australia's leading international lawyers in government, are embarked on just such a project of self reflection. I will conclude by reiterating a point Judge Xue made in the opening plenary session: justice is best seen ‘not as an event but as a process, directed to the attainment of human dignity’ and this surely remains so if even in our best moments as a species that goal always remains over the horizon and just out of reach.