Can You Hear Me Now? The Case for Extending the International Judicial Network

"Justice is the first virtue of social institutions, as truth is of systems of thought." John Rawls, A Theory oj 'Justice 3 (Belknap 1999). I. INTRODUCTION In July 2008, on the eve of yet another G8 meeting, The Economist questioned whether the world-governing organizations, most of which were born out of the ruins of the Second World War, and buttressed by myriad "conventions, conferences, courts, declarations, dispute-mechanisms, [and] special mandates . . . governing everything from human rights to anti-dumping complaints," were in serious need of reorganization.1 The magazine's lead article, What a Way to Run the World, sounded the alarm: "as global problems proliferate and information whips around the world ever faster, the organizational response looks ever shabbier, slower and feebler. The world's governing bodies need to change."2 Its cover depicted a caricature of the famous painting The Tower of Babel, by Peter Brueghel the Elder.3 To the upward-spiraling yet incomplete building of Brueghel's vision, the magazine had added funny cartoonlike balloons, coming from clearly clueless world leaders inside the tower. One balloon, this time coming from someone outside the tower, sardonically commented: "Makes Babel look able." This Article 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 relatively new phenomenon of the rise of a network of international courts and tribunals has been analyzed through numerous lenses: legal, of course, but also international relations, political science, sociology, even economics. However, philosophy has not yet caught up with it. Indeed, international justice has only relatively recently become a concern of political philosophy. A sustained effort has been gradually made, particularly during the past thirty years, to develop ethical analyses of international relations drawing upon the traditional concerns of domestic justice. Liberal political philosophy, which posits moral egalitarianism (that is, that all human beings, simply by virtue of their status as humans, are entitled to equal consideration), has been particularly challenged. Traditionally, liberal political philosophy has applied its egalitarian guarantees only within the confines of the national state. Most liberal theories of justice are hardly applicable to the entire population of the world. They work only when applied to this or that national polity, a small subset of humanity living within the same boundaries, or, at most, within the family of Western democracies. Yet citizenship and residency are as morally arbitrary as gender or race, as no one chooses parents or place of birth. While liberal political philosophy, during the twentieth century, has successfully challenged humanity to go beyond gender and race, the fact that access to justice still depends on the random factor of where, or from whom, one is born remains an intractable conundrum for liberal egalitarianism. In a scramble for an answer, liberal political philosophy has wavered between two extremes. The first is that national borders matter; maybe they are even all that matters. Thus, liberal impartiality is only properly applied within the national context.4 The second position, antithetical to the first, recognizes that if liberalism is to aspire to be a coherent and serviceable school of thought it must come to terms with its global aspirations. …