Law, justice, and international society: a brief history

Something that we may loosely call ‘international law’ has been around for thousands of years, although – as to some extent has always been the case with international law – there is a good deal of controversy about whether we can really call what we are observing ‘true law’ and indeed whether anything remotely resembling the fundamental principle that underlies modern international law, that of equal sovereign states, had any validity before the sixteenth century.Footnote ³ But without going into that particular controversy, we can find what may be called treaties in ancient Babylon 5,000 years ago, covering such perennial topics of international law as war, extradition, trade, asylum, boundaries, and even arbitration and diplomacy. Insofar as these treaties were located in an overall normative system, this derived from religion, with the only real ‘sanction’ against breaking treaties (apart from the probability of retaliation) being the fact that solemn oaths and curses were normally a part of the treaty signing process, so there was always the fear of divine punishment.Footnote ⁴ Hence, there was an elementary notion of justice present in the idea that all were subject to divine understandings of right and wrong. This, arguably, has cosmopolitan elements to it, in the sense that all were seen as subject to some sort of higher order regardless of any specific allegiances.

Even at this time, however, the full picture was more complex, especially with regard to one of the great perennial issues relating to law of any kind: its relation to power. Law, in the sense of sets of fixed rules applying to determinate activities, evolved alongside the emergence of settled communities. At the same time, power structures such as monarchies were coalescing round particular families which were anxious to find ways to consolidate the possession of power in the hands of themselves and their descendants. One means of achieving this end was through the establishment of ever-more sophisticated legal systems, which were also needed to bring some measure of order to the increasingly complex societies. While both the power structures and the legal systems they created had various coercive underpinnings, they also sought legitimacy and popular acceptance by claiming to stand for justice, which was generally understood to embody universal norms, especially fairness, protection of the weak, truth, honesty, and peace.Footnote ⁵ For example, one of the earliest known legal codes, that of the Babylonian king, Hammurabi, declared its purpose to be ‘to make justice appear in the land, to destroy the evil and wicked so that the strong might not oppress the weak’.Footnote ⁶ Crucially, little distinction was made in these ancient understandings of justice between the specific community ruled by a monarch and their application to rules governing relations with other communities. This is not to say that there were not many clear ‘insider-outsider’ distinctions deriving from different languages and customs in this region but the fact that the kings claimed to derive their right to rule from the gods meant logically that their laws were essentially the enunciation of universally applicable divine commands.Footnote ⁷ Occasional consequences of monarchical universalism could sometimes be seen as primitive forms of cosmopolitanism: for instance, if one kingdom agreed to extradite criminal refugees from another, it might insist that the person extradited and his family were treated with some humanity.Footnote ⁸

The Greeks and especially the Romans took all this to a more developed stage, with more institutionalisation (especially of arbitration) and, in general, more formalisation. But, to the extent that this was underpinned by notions of justice – apart from the vague ideas of divine justice – this consisted of an amalgam of two kinds of justice. The first was essentially procedural justice: the Roman concept of just war, for example, mainly involved setting out clear procedures for the lawful declaration and ending of war, with only very limited principles – such as the right of enemies to bury their dead – relating to the conduct of war. But growing up alongside these very ancient ideas was another set of principles – natural law. As already suggested, since natural law was seen as a set of maxims governing the behaviour of all people, who were seen as part of a single community – the great community of human kind – this very clearly involved a cosmopolitan understanding of justice. The same is true of some extra-European legal structures during this period – for example India and China both had extensive sets of norms about rightful conduct during war.Footnote ⁹

In the Greek case, any incipient notion of a ‘great community’, all of whose members possessed moral and legal rights, was confined to full citizens of other Greek city states, with particular outrage voiced when one Greek state at war with another was felt to have violated these principles. Plato, for instance, argued that war among Greeks should rather be seen as civil strife, with many more constraints on what could be done during fighting than in the case of war with non-Greeks.Footnote ¹⁰ Here too, however, the usual qualification about the need to be aware of power considerations applies. For example, in what may be seen as the world's first ever war crimes tribunal, in 405 BC, towards the end of the Peloponnesian War, the Spartan naval commander, Lysander, called an assembly of Sparta's allies to deliberate what should be done with 3,000 Athenian prisoners of war in the light of numerous Athenian atrocities. The assembly resolved to put all except one to death, but when Lysander asked Philocles, the captured Athenian general, what his fate should be, Philocles is said to have retorted:

Claims that such cases merely involve ‘victors’ justice' persist to the present day.

The period between the division of the Roman empire in 395 AD and the European discovery of the New World in 1492 is a complex one for historians of international law, with authority variously claimed by the papacy, the Holy Roman Emperor, what we would now call transnational organisations like the Hanseatic League and other leagues of mercantile cities, the Knights Templar and other chivalric orders, together with numerous bishops, barons, dukes, princes, and kings all possessing some measure of independent military power and legal authority as well as being enmeshed in an intricate mosaic of feudal, religious, and other obligations and entitlements. Other important international actors, notably Byzantium and the rising forces of Islam served to further complicate the legal picture. At the risk of vastly oversimplifying this complex reality, it could be argued that the period is characterised by not one but three competing cosmopolitan conceptions of law as well as by an emerging structure of interstate law. The three cosmopolitan formulations are natural law, now much more fully developed by various, mostly Christian, theorists, the claim of the Church of Rome to the universal authority of canon law and, thirdly, the Islamic notion that all Muslims constituted a single ‘umma’ or community and were thus subject to the same law. These were ‘cosmopolitan’ conceptions insofar as they all disregarded or at least marginalised more restrictive conceptions of a legal community, such as those encapsulated in the emerging sovereign state.Footnote ¹² As with Greece, however, the cosmopolitan emphasis on the bonds among individual human beings was restricted, in this case to members of the relevant religious faith, with a partial exception in Islam, where the ‘people of the book’ (Jews and Christians) were accorded more rights than followers of polytheistic religions.

Nonetheless, it was, of course the interstate version of international law that was winning through and that would come to dominate international relations by the nineteenth century. Here pragmatism rather than any notion of justice prevailed, other than the limited ideas of procedural justice and the rights of kings to be treated as equals (albeit with certain older ideas of a hierarchy amongst the monarchs still influential). As the notion of the sovereign state took an ever firmer grip, so was the role of international law increasingly seen as affirming the principles of the maximum possible freedom of states in their external conduct and their complete freedom in their internal conduct, and of the necessity for state consent to any rules by which they might be bound. The emphasis on consent was responsible for a huge growth in the number of treaties signed – some 16,000 between 1814 and 1924.Footnote ¹³ This was also the period that saw the principle of the balance of power written into international law. This was the equivalent for international order of the hidden hand of the market in economics, and with a similar aim: to emphasise the ability of the ‘market’ of states to achieve an ordered equilibrium without the need for any higher authority.

Amongst the consequences of this was a decisive shift away from the ‘great community’ concept that had partially underpinned international law to that point. Inasmuch as that international law remained attached to any kind of association, the emerging notion of the ‘society of states’ soon displaced the ‘great community’ conception, although this never entirely vanished from intellectual and, more rarely, interstate discourse. This fundamental change in emphasis is most clearly in evidence in Vattel's influential eighteenth century work on international law. Although, like his predecessor Grotius, Vattel continued to emphasise natural law, his crucial innovation was to make the subjects of natural law not individual human beings but sovereign states, each of whom ‘claims and actually possesses an absolute independence on all others’.Footnote ¹⁴ Vattel foreshadows later communitarian thinkers in seeing this absolute freedom of states as beneficial because it enabled each state to ‘govern herself in the manner best suited to her own circumstances’.Footnote ¹⁵ He gave particular emphasis to a very broad interpretation of the principle of non-intervention in a state's internal affairs, encompassing not just a state's freedom to choose its own government and religion but to be free from ‘manoeuvres’ by other states ‘tending to create disturbance … to foment discord, to corrupt its citizens, to alienate its allies, to raise enemies against it, to tarnish its glory, and to deprive it of its natural advantages’.Footnote ¹⁶ States should, moreover, deal with each other on the basis of equality, not in accordance with some other principle, such as their common religion, since this was the only firm foundation for the ‘common safety’ of nations: the sole source of those legal obligations, such as observing treaties and respecting diplomatic immunity, that did not require the formal consent of states.Footnote ¹⁷ One, perhaps inevitable, consequence of making international law an instrument of the sovereign state was its increasing annexation by the great powers, as was seen most clearly in the use of international legal arguments against China in the nineteenth century and to justify various colonial ventures.

There are of course marginal exceptions to the argument that international law had little concern with justice of any kind other than procedural in the nineteenth century – the slave trade was brought to an end in various treaties, the first Geneva Conventions were drawn up, some of the functional organisations set up in areas like postal and telegraphic communications laid down rules that limited complete state freedom in certain marginal respects. Some recognition of religious freedom – with the implication that there were universal norms that all states should observe – is to be found in some nineteenth century treaties. A leading authority on international law has argued that the development of international law as a profession in the nineteenth century was accompanied by strong cosmopolitan aspirations.Footnote ¹⁸ But, to repeat, these are fairly marginal developments, as was also the case with the League of Nations. The Versailles Peace Treaty did establish the first ever international right for individuals to appear in an international court. This was in the case of Silesia which was divided between Poland and Germany, with some Poles still living in the German part and vice versa. In this single instance the representatives of the national minorities were permitted to present their grievances before an international body. The post-war settlement also established the International Labour Organisation which laid down certain workers’ rights. But these were all exceptions to the general rule about no interference with national sovereignty, and they were fairly limited exceptions at that.Footnote ¹⁹

It took the horrors of the Nazi era, combined with the strongly anti-imperialist stance taken by both the US and the Soviet Union to bring some recognition that the old order had to change, hence the seven references to human rights in the UN Charter and the relatively strong (certainly compared with the League Covenant) anti-colonial norms in the Charter. But the Charter also contained Article 2.7, with its reservation about the exclusive domestic jurisdiction of states – an article cited by South Africa in relation to its right to practice apartheid. The Cold War also severely constrained any efforts to develop more international law in ways that promoted any notion of cosmopolitan or universal justice. The Soviet bloc did not sign the Universal Declaration of Human Rights, the fact that there were two Covenants (with binding legal force, rather than merely declaratory like the Universal Declaration) – one on Civil and Political Rights, the other on Social and Economic Rights – reflected both the differing Soviet and Western ideas about rights and their attempts to embarrass each other. The same was true of the refugees regime set up in 1950, which served to highlight the fact that most refugees at that time were coming from the Soviet bloc.Footnote ²⁰ In any case, although all of these documents undoubtedly did embody various principles of justice, the regimes that they established were, first of all, rather weak and secondly very firmly statist in their underlying structure, although there was an optional protocol to the civil and political rights covenant permitting individuals to bring complaints before the human rights committee.

The cosmopolitan case

Advocates of cosmopolitanism might argue that three developments since the 1960s have gradually begun to change the overall picture towards a more cosmopolitan order, including justice. These developments are decolonisation, which brought a Third World majority to the UN, the end of the Cold War, which removed the constraints the UN had been working under, and, more generally, globalisation, which broke down territorial boundaries and created greater global interdependence.

So far as the international law aspects of the cosmopolitan case are concerned, they would point first to some changes even during the Cold War period. For example, if we look at the International Court of Justice (ICJ) cases we can see a shift from the very conservative approach of the 1950s towards a more activist and, arguably, progressivist approach. In the 1970 Barcelona Traction case, the ICJ introduced the concept of erga omnes obligations – obligations that apply to the international community as a whole, not just to the individual states involved in ICJ hearings. In its elaboration of what counted as such obligations, it explicitly referred to ‘the principles and rules concerning the basic rights of the human person’.Footnote ²¹ Later deliberations at the UN and elsewhere have tried progressively to expand the remit of the principle to include state obligations relating to climate change, development, and international crime.Footnote ²² In its 1995 East Timor case the ICJ recognised self determination as an erga omnes obligation.Footnote ²³ However, it should be noted that the Court was consistently cautious in its discussions of the more ambitious and far-reaching claims or implications with regard to the erga omnes concept.

Erga Omnes may be seen as closely related to another development in 1969, when the Vienna Convention on the Law of Treaties introduced for the first time in a treaty the notion of jus cogens – compulsory law – which invalidated any treaty that conflicted with a ‘peremptory norm of international law’, which was defined as a ‘norm accepted and recognized by the international community of states as a whole’. In fact the jus cogens principle has very seldom been cited by the ICJ, although it has been enthusiastically welcomed by idealists who would extend it beyond obvious areas like genocide and war crimes to environmental or feminist issues. A much narrower and strongly statist understanding of what jus cogens comprises is also possible, namely those basic rules that are indispensable to the capacity for states to conduct their everyday business in an orderly fashion. Even here there is room for controversy, particularly over the most commonly cited rule bearing a jus cogens character: the prohibition of the rule of force except in accordance with the UN Charter.Footnote ²⁴ However, most contemporary interpretations of jus cogens give it a clearly cosmopolitan emphasis, with a primary focus on human rights norms.Footnote ²⁵

One variant of cosmopolitan thinking in international law, which also draws inspiration from jus cogens and erga omnes, argues that the main implications of such developments concern the responsibilities of states towards their own citizens. This perspective avoids the most obvious problem with the more ambitious ‘great community of mankind’ formulations of cosmopolitanism – namely the absence of any significant institutions empowered to implement jus cogens – since it can be accommodated within a society of states. The need for the members of this society to accept and enforce humanitarian values bears an obvious relation to Kantian ideas that have also inspired some contemporary cosmopolitans, leading to a substantial body of international legal thinking that sees itself as ‘neo-Kantian’.Footnote ²⁶ So far as actual applications of this thinking in legal practice are concerned, cosmopolitans point to ways in which the more absolutist interpretations of the concept of sovereignty have been whittled away by numerous treaties as well as UN Security Council actions that have involved a broadening of the concept of ‘threat to international peace and security’ to include instances of internal violence in former Yugoslavia, Somalia, and elsewhere.Footnote ²⁷ The implications of developments such as these has been to make a state's claim to sovereignty subject to acceptance by the international community that it is willing and able to undertake responsibilities that the international community deems inseparable from sovereignty, including protecting the rights of its citizens. In Kofi Annan's words, ‘it is the people's sovereignty rather than the sovereign's sovereignty’.Footnote ²⁸

A related legal development has been an increasing tendency in liberal democracies for national courts and legislatures to act as if they accepted erga omnes and jus cogens as imposing an obligation to apply universal jurisdiction in cases where an individual was accused of serious violations of human rights. The most prominent case here was the detention in Britain of former Chilean Head of State, Pinochet, after a Spanish judge had called for his extradition to Spain to answer charges of torture, hostage-taking, and other acts deemed crimes under international law. The standard defence against such charges, deriving from the traditional doctrine of state sovereignty, was that he enjoyed state immunity in respect of alleged crimes committed while he was Head of State. The case was eventually referred to the House of Lords, which decided initially that he had no such immunity, although its legal grounds depended on the fact that the UK had formally adopted the UN Torture Convention, making this English law as well as international law.Footnote ²⁹ Numerous less dramatic cases, all involving issues relating to the application of international law in domestic courts, have been heard in many European countries as well as in North America and elsewhere.Footnote ³⁰ While the legal issues under consideration have generally focused on narrow questions of direct relevance to the country concerned, such as whether it might incur liability as a result of a breach of some international obligation, the overall effect has been to lend substance to claims that states now comprise an authentic legal community whose remit goes far beyond the classic concern with the rights of sovereign states.

Other ICJ cases that have been pointed to as evidence of a shift towards a stronger concern with interpersonal rather than interstate justice include the various South West Africa/Namibia cases. There the Court at first tended to uphold South Africa's continuing right under the old League of Nations Mandate to control South West Africa – essentially an orthodox contract law position – arguing in 1966 that

However when the same case was referred to it – for the sixth time – in 1971, the Court argued what, for the time, was a relatively revolutionary view of treaties, namely that interpretation of them had to be affected by changes since the treaty was drafted, so the South African hold on Namibia was illegal.Footnote ³² Other cases of note include the Nicaragua case where the Court ruled against the US over its support for the Contras and its controversial 1996 Advisory Opinion concerning the Legality of the Threat or Use of Nuclear Weapons. While some have criticised the ICJ in the nuclear weapons Opinion for taking insufficient account of the degree to which US nuclear doctrine violates humanitarian law,Footnote ³³ in the context of this article the Opinion is interesting because of the way in which it gropes towards a formulation of the changed societal framework within which international law operates:

Even in the case of the international protection of human rights – the area that would be most central to any cosmopolitan order – some positive developments could be noted during the Cold War. The UN's human rights regime witnessed several conventions on specific areas of human rights, such as racial discrimination, torture, the rights of women, and the rights of the child. In some cases these were supported by further institutional developments such as a special sub-Commission to look into ‘situations which reveal a consistent pattern of gross violations of human rights’ and a special rapporteur on summary or arbitrary executions.Footnote ³⁵ After the Cold War ended, a more extensive system for monitoring states’ observance of their human rights obligations was developed by the UN, greater publicity was given to serious violations of rights and more effective means of investigating and fact-finding were established.Footnote ³⁶ The key institutional changes were the establishment of the office of UN High Commissioner for Human Rights in 1993, with a remit to take a leading role in promoting human rights and the replacement of the UN Commission on Human Rights by the UN Human Rights Council in 2006. This period also saw several instances of ‘humanitarian intervention’, where military intervention by the UN or NATO was justified at least in part by reference to the need to prevent extreme suffering following the breakdown of states or other threatening circumstances.Footnote ³⁷

A true cosmopolitan order, however, would need to go far beyond some measure of international protection of human rights of the kind discussed to this point. In particular it would require substantial support for distributive justice with a view to providing all members of the great community with the wherewithal to live at a level significantly above basic subsistence.Footnote ³⁸ Even here the optimistic cosmopolitan might be able to point to some developments that could be seen as first steps towards international distributive justice. The ‘right to development’ has been affirmed in numerous UN documents and states have undertaken to increase their aid to the poorest countries. Some specific measures have incorporated distributive principles in various ways. The Law of the Sea Convention of 1982 contained radical provisions for the deep seabed mining regime, including strong redistributive mechanisms and what amounted to compulsory transfer of technology from the rich to the poor countries. It also required a Review Conference to be held 15 years after the commencement of commercial exploitation, with the right to amend – by a three quarters majority rather than unanimity – the Convention to ensure that the seabed had been exploited ‘for the benefit of all countries, especially the developing states’.Footnote ³⁹

Another cosmopolitan argument is that the increasing consensus about the serious potential damage emanating from climate change has imposed upon states the need to see the world as a community of people rather than states because environmental threats do not observe national boundaries.Footnote ⁴⁰ Here, too, some acceptance of distributive justice has been in evidence in the various declarations, reports and conventions relating to the environment. Developing countries from the outset advanced several different kinds of justice claims in negotiations: that they should have the right to exploit their own resources, that their own sovereignty should not be infringed, that the costs of an environmental regime should fall primarily on the developed world and that the more environmentally friendly technology should be freely transferred to them, rather than being subject to current rules about intellectual property rights.Footnote ⁴¹ The language of all of these has been replete with justice-related principles, including ‘intergenerational justice’ and the principle of ‘common but differentiated responsibilities’ – that while all shared the same interest in protecting the environment, richer countries had greater responsibilities, including the need to transfer relevant technologies to developing countries. The 1997 Kyoto Convention, for example, added relatively stronger requirements for all to implement their commitments ‘in such a way as to minimize adverse social, environmental and economic impacts’ on developing countries and for new resources, including the transfer of technology to be provided to meet the costs of developing countries.Footnote ⁴²

The last twenty years is of course an exceptionally complex period so far as attempts by academics to identify fundamental underlying trends are concerned: the end of the Cold War began with proclamations about the end of history and a new world order under a single superpower. Now we have the global recession, growing fears about climate change, the Taliban fifty miles away from the capital of a nuclear power, and widespread distrust of the US. But, to concentrate again on the optimistic perspective, the sorts of trends I have already outlined have continued, such as the more activist approach of the ICJ. More recently the Court has taken to including general recommendations and expressions of concern in its findings on specific cases, recommendations that usually relate to humanitarian or human rights issues. This was something it had made a point of explicitly refusing to do in its earlier practice. One important case here was the LaGrand case, when two German nationals, the brothers LaGrand, were sentenced to death for murder in the US. Under the Vienna Convention on Consular Relations, they should have been informed of their right to consular assistance and they appealed on those grounds but were executed in 1999. Germany initiated action in the ICJ asking for a provisional order to delay the execution of the second brother, which the ICJ granted. The two key legal issues were about the precise legal force of an ICJ provisional measure – the Americans arguing that provisional measures weren't legally binding – and also the question of whether the Vienna Convention granted rights to individuals – the American argument was that only states had rights. The ICJ upheld the German case in both respects.Footnote ⁴³ This clearly had cosmopolitan elements since it claimed in effect a higher authority for the ICJ over the national courts and it insisted that individuals had international legal rights: albeit individuals who were, technically, foreign nationals despite their long abode in the US. In a case relating to the violence in the Congo in 2002, the Court made some quite sweeping general recommendations relating to humanitarian law, and also argued that, whether or not states accept the jurisdiction of the ICJ, they were still responsible for acts that violated international law.Footnote ⁴⁴

Probably the most important development that many would interpret as a move towards cosmopolitan justice is the creation of the International Criminal Court (ICC), and the various Tribunals on former Yugoslavia, Sierra Leone, and Rwanda that preceded it. The most dramatic move by the ICC was its issuing in 2009 of an arrest warrant for the President of Sudan, Al Bashir, on various charges relating to crimes against humanity and war crimes.Footnote ⁴⁵ This was the first such warrant issued against a sitting President, although the former Presidents of Liberia and Yugoslavia, Charles Taylor and Slobodan Milošević, both faced trial in the Special Court for Sierra Leone and the International Criminal Tribunal for the Former Yugoslavia respectively. One crucial difference between these tribunals and the ICC, on the one hand, and the ICJ, on the other, is that the ICJ functions essentially as a court of arbitration, where it hears only cases brought to it by disputing parties, although it also gives advisory opinions on cases referred to it by the UN. As we have seen, it has proved willing and able to use both functions to make pronouncements on larger questions of legal development but it has no power to summon states to appear before it or to punish individuals, unlike the ICC.

Finally, reference should be made to all sorts of developments in regional organisations, especially the EU, which give rights to citizens against their own states and the strengthening of various other legal, quasi-legal or arbitral arrangements – like, for example, the compulsory dispute settlement procedures of the World Trade Organization. A more complicated case is the increasing tendency after the Cold War for the International Monetary Fund (IMF) and World Bank to impose political conditions, including progress towards good governance and human rights observance on their loans. This of course has been subject to a great deal of criticism but for our purposes one can perhaps relate it to what some would see as another cosmopolitan tendency, towards the assertion that individuals have a right under international law to democratic government.

So, what we have is a whole range of developments which, taken together, some would claim amount to the emergence of a global constitutional system.Footnote ⁴⁶ In this new order we have universally acknowledged core values, individuals possessing increasing rights under international law, ever greater legalisation and institutionalisation, sanctions against individuals, even national leaders, for violating these norms, progressive and assertive approaches being adopted by the ICJ, IMF, World Bank and other organisations, especially the EU, states themselves incorporating these principles in their own legal systems and some moves towards distributive justice. One might also note the emergence of ‘global civil society’ – increasingly influential non-governmental organisations and other groupings, some organised transnationally, others involved in ongoing networks.Footnote ⁴⁷ These, it is argued, underpin and make operational the shift towards a cosmopolitan legal culture.

The half empty glass?

It does not require too close examination of many of these developments for doubts to begin to surface. To take, first, cosmopolitan perspectives that assume gradually declining state power, the Law of the Sea provisions have been weakened due to American pressure, the US isn't a member of the ICCFootnote ⁴⁸ and has taken an increasingly negative attitude towards the ICJ, not to speak of its own ability to disregard international law on the use of force in the Iraq War. It has also been very wary about accepting that general international pronouncements about the need to reduce poverty, for example, contain any legal obligations. The ironical paradox here is that the state with perhaps the most elaborate legal structure of any in the world is, precisely because of the importance of law there, reluctant to indulge in what cynics regard as merely pious waffle in case legal obligations might arise.

The same kinds of problems occur when we consider the hoped-for emerging cosmopolitan legal order. All sorts of doubts have also been expressed about the ICC, not just from the American side – some argue that it is a Western tool that will never be used against Western powers. This is an argument that has been employed more generally against cosmopolitan or universalist understandings of international law: that it will inevitably take a neo-imperialist form since its essential principles are Western and its operation will reflect an imbalance of power in favour of the West.Footnote ⁴⁹

Nor is what has been hailed as ‘progressive’ developments necessarily free from ambiguity or complication. Old arguments about how in International Relations we need to prioritise order over justice have been revived in the context of the ICC's recent arrest warrant for the Sudanese President. In the final analysis he had the power in Sudan not the international community and he used it to expel the aid agencies, seize their assets and close down Sudanese human rights organisations. As the prosecution case said its evidence had come in part from humanitarian agencies, this was hardly surprising. Global civil society, in other words, has its limitations and can even make things worse where a more traditional, quiet interstate process of diplomacy can produce more dividends.

More generally, the argument is also often heard that there aren't really universal values – yet again this is a disguised Western agenda and, in any case, the West is not really prepared to put its money where its mouth is. Conversely, on several occasions when UN meetings have attempted to agree new sets of human rights, numerous developing states have raised objections on grounds founded on their own very different perspectives with regard to women's or gay rights, for example, or in defence of the more patriarchal approaches embodied in ‘Asian values’.Footnote ⁵⁰

Then there are the practicalities. A truly effective global system of international justice would require many more billions of dollars than states are prepared to make available. Take the case of Rwanda, which spoke of holding war crimes trials for 32,000 people involved in around 1,000,000 murders. To provide a fair trial and due process of law, including getting hold of acceptable evidence for all cases would be immensely costly and time consuming, as of course would be apprehending the alleged criminals. Given increasingly hard-nosed approaches to public expenditure no government was able to commit to the tribunals the kind of resources that would have been necessary to permit them to operate quickly and efficiently. For example, at the end of 1994 in Yugoslavia the Prosecutor wanted something like 500,000 documents to be translated into the various languages of the country – only to be told that given the tribunal's current translation resources, this would take 500 years. Finally, as the 2009 Copenhagen Conference on global warming demonstrated, even predictions of extreme danger unless states shifted decisively away from their attachment to sovereignty were unable to persuade the Chinese and Americans to accept any significant binding obligations.

Nor is cosmopolitanism itself quite the set of taken-for-granted universal moral codes that some of its advocates appear to believe, especially in its legal dimensions and especially with regard to the most common target of cosmopolitan criticisms: the US. Recent books by leading American legal academics have argued against what they term as ‘global legalism’:

Amongst other arguments, they contend that international law depends on the continuing existence of powerful states and that the fragmentation of state power as a consequence of globalisation hinders rather than enhances a more robust international legal structure, that closer inspection of the ICJ reveals a decline in its importance, especially from the perspective of the ten major powers, that deep normative divisions remain and that liberal democracies are constrained in their capacity to move too far beyond what inevitably self-interested voters permit. Finally, the historical circumstances that permitted some cosmopolitan elements to play a part in the legal order in the past required either a widely held belief in divine forces or imperial power or deep ethnic, cultural, or religious ties. While such factors might play a part in some regions or among some groups they are as likely to produce a world of divided legal orders as a universal order.

All this of course goes to show that nothing is ever simple in world affairs. If Economics is the dismal science, International Relations could perhaps lay claim to being the ‘cruel science’, not just because of the horrors that students of the subject have to confront daily but because the academic study of world politics conveys a fairly bleak outlook on the prospects for any fundamental change for the better. International Relations so often seems to be the realm of recurrence and repetition where we are doomed to go through the same endless cycles of war followed by a peace which is always uneasy and always temporary, not because we are stupid or know no better but because of basic and inescapable aspects of the international system – most of them revolving around power and those who possess it. 2,400 years ago Thucydides has the powerful Athenians telling the Melians: ‘let's not waste time with fine words which nobody will believe. You know as well as we do that the question of justice hardly ever comes into human affairs. The truth is that the powerful take what they can and the weak grant what they must.’Footnote ⁵²

However the bleakest of these kinds of appraisals – the Realist notions of the inevitability of great power conflict, the limitations imposed by the sovereign state system and so forth – are not the whole picture. International law has, of course, always had to contend with an additional Realist argument – namely that it is not really law because ‘law proper’ needs an authoritative lawmaker and must also be backed by effective sanctions – neither of which international law has. But instead of seeing this as yet another weakness in a world of power-seeking sovereign states, it is actually possible to see it as a potential strength. While a legal system with all the accoutrements of, say, the British or American systems, where it is a vital part of the overall structure of checks and balances, rights, freedoms, and responsibilities in those societies, is extremely unlikely in the international context, it is important to remember that the legal system is part of a larger structure and an overall culture and ongoing discourse. In other words, what makes those societies work is not just the formal rules and institutions but an ongoing process that involves many actors – the mass media, civil society, religious organisations and even occasionally academics as well as many process apart from the formal constitutional ones. The same is even more the case with global politics.Footnote ⁵³ IR constructivists would add that routine participation in international discourse at many levels shapes the way in which states perceive their identities, with clear implications for their attitude to international law.Footnote ⁵⁴ Other theorists might add that while legality is of only marginal significance in world affairs, international legitimacy may be a vaguer but possibly more crucial factor, as suggested in the ongoing project on this subject by Ian Clark.Footnote ⁵⁵

In the emperor's summer palace in Beijing there is a full-sized model of a boat, fashioned largely out of marble. It is there, so it is said, to remind the emperor that, while the Chinese people may be perceived as the water on which the ship of state (namely himself) floats, water may not only support a vessel but it may, in turbulent weather, rock it violently, causing sea sickness to all on board. It may even, in extreme conditions, overturn it. Power, in other words, while generally decisive is never absolute.