Can You Hear Me Now? The Case for Extending the International Judicial Network
43 Pages Posted: 8 Dec 2007 Last revised: 1 Aug 2009
Date Written: May 28, 2009
My paper intends to take stock of almost two decades of tumultuous multiplication of judicial institutions, which has led to at least more than a dozen fully functioning international courts and several dozen quasi-judicial, implementation-control and sundry dispute-settlement bodies. The growth has been organic and unplanned. The stated aim of this panoply of bodies and procedures is to ensure that international law is observed and that disputes arising out of its implementation or interpretation are settled peacefully and in an orderly fashion. But one could ask whether, and to what extent, this remarkable growth of bodies and procedures has brought humanity any closer to the attainment of justice, one of the oldest and loftiest goals of human societies. The fact is that despite all rhetoric, human rights are universals while remedies for violations of those rights still depend on one’s residence and/or nationality.
The paper is divided in four parts. The chosen approach to justice is holistic, touching on all its main aspects and encompassing not only the international level but also the domestic one. In the first part, some fundamental logical and philosophical concepts are sketched.
The first idea is that every legal system necessitates a judicial system, for only courts of law can credibly dispense justice. If the international legal system aspires to be a legal order (i.e. a community based on the rule of law, a social order where everyone is subject to laws and they are enforced impartially), it ought to be endowed with courts.
The second is that, existence of international courts notwithstanding, the primary responsibility to dispense justice is at the national level. The international level is only subsidiary (albeit it has a reason to be of its own). It is only a second-best, a safety net to ensure that if justice cannot be done nationally there might be a further remedy.
The third idea we propose is that justice is not a unitary concept but the aggregation of three separate notions: distributive, corrective and retributive justice. Since progress has been uneven along these three dimensions, disaggregating the unitary concept makes it possible to better appreciate how far humanity has or has not progressed towards ensuring that effective justice is available to all.
In the second part, we review progress made to date internationally along these three dimensions. We will see that while no progress has been made on the distributive justice front, much has been done for retributive justice and even more for corrective justice.
The third part identifies challenges, gaps and failures that require study and action. First, while we stress the importance to ensure justice is done at the national level, we will see how often the primary dispenser of justice might fail. We will then analyze the subsidiary international network, and we will point out six reasons why the emerging international judicial network falls short of a judicial order, the main reason being that availability and acceptance of jurisdiction of international courts and tribunals varies greatly across the globe.
The final part will attempt to sketch a strategy to foster the growth of judicial systems that can ensure that justice is available to all. We deliberately decided to set aims high, so as to provide a general sense of direction towards which progress can and should be made rather than a step-by-step guide. It is a grand strategy rather than a tactical plan, but, nonetheless, some immediately implementable ideas have also been provided.
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