The International Politics of Judicial Intervention

Andrea Birdsall

• Publisher: Routledge
• Year: 2009
• ISBN:
  9781134040988
• Edition: 1
• Topic: Politik & Internationale Beziehungen
• Subtopic: Politik

This volume considers the most recent demands for justice within the international system, examining how such aspirations often conflict with norms of state sovereignty and non-intervention.

From an interdisciplinary approach that combines issues of International Relations with International Law, this book addresses issues neglected in both disciplines concerning the establishment a more just international order and its political implications. Through detailed examples drawn from key developments in international law, the author explores how new norms develop within international society, and how these norms generate both resistance and compliance from state actors. Case studies include:

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• Pinochet and the House of Lords

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• The Congo versus Belgium at the International Court of Justice

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• The establishment of the ad hoc war crimes tribunal for the Former Yugoslavia

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• The creation of the International Criminal Court and US opposition.

The International Politics of Judicial Intervention will be of interest to students and scholars of International Relations, Human Rights and International Law.

1
Order and justice in international relations – a theoretical and analytical framework

This chapter outlines the theoretical and analytical framework that provides the basis for the case study analyses. The main theoretical approach is based on the English School of International Relations combined with a constructivist view to increase the focus on norms and how they enable and constrain state action. The central focus is on the conflict between order and justice and how it is dealt with in the English School through its pluralist and solidarist approaches.¹

The English School’s starting point is that states form an international society that provides rules and guidance to regulate relations between them. Bull defines international society as

‘a group of states, conscious of certain common values, [that] form a society in the sense that they conceive themselves to be bound by a common set of rules in their relations with one another, and share in the working of common institutions’ (Bull 1995:13).

The English School approach is a move away from the traditionally predominant theory of realism and its primary focus on concepts of power and national interests. It highlights issues of coexistence and co-operation in the relations between sovereign states and thereby provides a more suitable framework to explain the growing importance of international law and human rights norms than realism. Realism’s main limitation is its inability to explain adequately developments in international relations since the end of the Cold War, particularly because it is sceptical about the possibilities of co-operation and also the impact of universal values (such as norms or international law) and their potential to contribute to change in the international system. The English School approach incorporates some basic realist assumptions but emphasizes the concept of international society, which means that states see themselves to be bound by common rules and norms and that they have responsibilities by virtue of being members of the society. Buzan argues that the English School’s focus on international society adds an important social element that needs to be added to realism’s logic of anarchy because ‘states live in an international society which they shape and are shaped by’ (Buzan 2004:8). Furthermore, the approach does not focus on order as the only value in international relations but also takes considerations of justice into account.

The English School incorporates two different views on the conflict that can occur between order and justice: pluralism, which sees order as being prior to justice, and solidarism, which tries to overcome the conflict by recognising that the two concepts are inextricably linked. Throughout the case study analyses in this study both the solidarist as well as the pluralist approaches will be considered. The pluralist view incorporates more realist elements, particularly because it emphasizes the need to subordinate demands for justice to principles of national interests and order. The solidarist approach, in contrast, is built on more liberal ideas of universal values, common morality and international law. It will be argued in the course of the analysis that a shift has taken place towards increased solidarism with regard to the enforcement of human rights laws that tries to find ways of reconciling order values with justice norms to arrive at a long term and stable solution of the conflict.

The English School is a valuable starting point for the analysis as it focuses on the concept of international society and the values of order and justice, opening up important (ethical) questions about the relationship between the two. The approach is often criticized, however, for its lack of a discussion on research methods (see for instance Finnemore 2001), which weakens its analytical strength as a tool for examining movement and change in international society. Shared values and interests are seen as sources of international society and order, but it is not explained how they develop to become part of the basis of international society and how they change. In order to theorize normative change, this book’s framework incorporates a constructivist approach and the norm life cycle model, which is a valuable tool for examining how norms emerge and how they might be integrated into the rules of the international community. The model provides a useful structure which makes it possible for the case study analyses to focus on the development of justice norms. The cases to be analysed have been chosen to reflect different stages of the life cycle to examine developments in both directions: acceptance of progress towards increased incorporation of human rights norms into the rules of international society as well as resistance to it. The telos of the life cycle is the full internalization of norms into international relations which corresponds with the English School solidarist aim of a more just order.

Constructivism and the norm life cycle introduce a more dynamic element into the overall framework for analysis that is then not only based on aspirations as set out in the English School’s solidarist approach, but focuses more on the process of change. This leads to an overall theoretical and analytical approach that places greater emphasis on norms and shared values, exploring how they affect and are affected by state action and how they change. This is important because ‘states might not have a choice between acting in pluralist or solidarist ways; rather, the question becomes one of how such norms are transmitted and internalized’ (Dunne 2005:74).

This chapter starts with a brief outline of the English School and its focus on the concepts of order and justice and the conflict between them. The chapter presents pluralism and solidarism as polar ends of a continuum, ranging from very state-centred, order based views at one end to more justice based ones that focus on notions of humanity at the other. The works of four influential authors are presented in this context to illustrate different positions along the continuum. Such gradations of types of pluralism and solidarism become apparent the case study analyses in which they are reflected in justification and argumentation processes. The chapter then moves on to outlining elements of constructivism and the norm life cycle which provides constructivism with an account of change and is the basis for the choice of case studies that reflect different stages of the cycle.

The English School and concepts of order and justice

The English School of International Relations embraces the realist notion of power and sovereign states and neo-liberal ideas of co-operation, common morality and the importance of international law. The context in which states act is an anarchical society of sovereign states. Even though states have to ensure their own survival, the English School (unlike realism) argues that anarchy is not a state of war, but that a sense of belonging to a community has civilising effects on international relations.

The English School recognizes that international politics is a dialogue between three traditions of thought about the international state system: the Hobbesian or realist tradition, the Kantian or universalist tradition and the Grotian or internationalist tradition. This distinction is based on the work by Martin Wight on the three traditions of realism, revolutionism and rationalism (Wight 1994). Realism sees states as power agencies that focus on national interests, security and their own survival. International relations are competitive and conflictual and are primarily instrumental for states’ pursuit of power. According to realism, states only co-operate with each other and obey international law if it is in their national interest to do so. Rationalism sees states as legal organizations that operate in accordance with international law and rules of diplomacy. International relations are perceived as rule-governed activities that are based on the mutually recognized authority of sovereign states. Revolutionism downplays the importance of states altogether and places the main emphasis on human beings as the ultimate members of international society. The focus of the revolutionist approach is on moral unity and the possibilities of progress and change towards a society of mankind (rather than one of states). The connection between the three traditions is apparent in the concept of international society (Buzan 2004:9–10): it combines the realist element of an international system with the Grotian element of a socially constructed order and the pursuit of international society makes an engagement with elements of liberal revolutionism necessary. This theoretical pluralism strengthens the English School in comparison to other theoretical approaches.

Each of these traditions offers important insights into the complexities of international relations and even though they all need to be taken into consideration to gain a balanced view, the English School is most closely associated with rationalism or the Grotian approach. The main focus is on the concept of international society in which states are bound by common rules and norms and which is seen as the basis of international order. The maintenance of international order assumes that states have a sense of common interests in the elementary goals of social life, which are the limitation of violence, the stability of possession and the honouring of promises and agreements (Bull 1995:4–5). Rules provide guidance as to what behaviour is consistent with these goals; they may have the status of international law, moral principles, and customs or established practices.

The role of international law

International law is an integral part of international society as one of its institutions which provide rules and guidance for the context in which states collaborate.² According to Bull, an institution is understood as

a set of habits and practices shaped towards the realisation of common goals. These institutions do not deprive states of their central role in carrying out the political functions of international society, or serve as a surrogate central authority in the international system. They are rather an expression of the element of collaboration among states in discharging their political functions – and at the same time a means of sustaining this collaboration. These institutions serve to symbolize the existence of an international society that is more than the sum of its members, to give substance and permanence to their collaboration in carrying out the political functions of international society, and to moderate their tendency to lose sight of common interests (1995:71).

International law is central in the context of international society because it gives meaning to the concept of ‘society’, in which states are bound by rules. According to the English School, international law has three main functions in the international order: first, it identifies the idea of a society of states as the key normative principle of political organisation of mankind. Second, it confirms the basic rules of coexistence among states and other actors in this society; and third, it helps mobilize compliance with these rules. Unlike national law, international law does not include a higher authority or independent means of coercing states into compliance. It is dependent on voluntary state co-operation, but ‘the importance of international law does not rest on the willingness of states to abide by its principles to the detriment of their interests, but in the fact that they so often judge it in their interests to conform to it’ (Bull 1995:134).

Principles of order

International law contributes towards maintaining international order, which is ‘a pattern of activity that sustains the elementary or primary goals of the society of states, or international society’ (Bull 1995:8). The most important and fundamental principles of international order are state sovereignty and non-intervention, which are regarded to be a ‘minimum condition for their [states’] orderly coexistence’ (Vincent 1974:331). These principles are also enshrined in the UN Charter: Article 2(4) declares that ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’ In addition, Article 2 (7) states that

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.

The UN Charter only allows exceptions to the non-intervention principles in cases of individual or collective self-defence (Article 51) and of threats to international peace and security (Chapter VII).

However, order is not the only value in international politics; states are also increasingly concerned with considerations of justice. Unlike order, ‘justice’ is more difficult to define as it is a subjective concept and no single definition exists that is recognized in every culture. Bull saw justice as a ‘class of moral ideas, ideas which treat human actions as right in themselves and not merely hypothetically imperative’ (Bull 1995:75)....