Trumping

Geoffrey Best

  • Fairness in International Law and Institutions by Thomas Franck
    Oxford, 500 pp, £30.00, November 1995, ISBN 0 19 825901 8

The Director of the International Studies Center at New York University believes that the world has recently made giant strides towards becoming much fairer. He makes the case as well as it could be made, but possessing apparently no sense of wonder and not much of historical perspective, Thomas Franck doesn’t seem to realise how extraordinary a claim it is. Whoever, anywhere, before our own later 20th century, thought that the world could be ‘fair’? Was ineradicable unfairness not the common perception? And if this has been more or less the shape of things through the millennia, how could our fifty years ring in such giant changes, and how permanent can we expect them to be?

I mustn’t exaggerate – those changes were not unheralded. Franck unsurprisingly spotlights 1776. (He doesn’t bring in 1789, where a historian might find comparable significance.) The Declaration of Independence did indeed broadcast the suggestion that man’s secular condition need not for ever and for everyone be so unfair. With this suggestion went the new-made United States’s representation of our Old World as a museum of degeneracy, a permanent exhibition of what most warped and thwarted human self-fulfilment and satisfaction. The New World would show a better way. An export model of ‘the American Dream’ was put on offer for the encouragement of the rest of humankind. However rampant and self-serving its contradictions, its universalist pretensions have ever since fed belief in the attainability of the sorts of fairness implied by democracy, individuality, enrichment and (what we now call) human rights. No wonder the United States led the way to the formation of both the League of Nations and, 25 years later, the United Nations; but, because of those contradictions, no wonder either that it never actually joined the first, and is now the main detractor and debtor of the second.

1917 is the other date a historian would wish not to be missed. The ‘dream’ that came on offer then was at once very like and very unlike the American one: like, in the plenitude of catches and contradictions lurking behind the confident and generous universalist promise; unlike, in that the promise was first and foremost of fairness in terms of collectively-managed sociopolitical equality and distributive justice. It made no great gains beyond Soviet frontiers until after the Russians had won their Great Patriotic War, but the seed had been widely sown and from 1945 onwards, the UN’s unending debate about fairness was to draw as much on the ideas of Rousseau, Marx and Lenin (not to mention Mao’s, which came on stream in the Sixties) as on those of Locke and Jefferson, Churchill, Smuts and Roosevelt. The debate was the more fruitful and lively for being at the convergence of ideas streaming from such disparate sources. Two of Roosevelt’s famous Four Freedoms, for instance – freedom from want and freedom from fear – figured also in Stalin’s list of universal desiderata, and were defined in substantially the same way.

1945 was the year of Franck’s big bang: ‘We the Peoples of the United Nations determined to save succeeding generations from the scourge of war ... to reaffirm faith in fundamental human rights, in the dignity and worth of the human person ... to establish conditions under which justice and respect for the obligations of treaties can be maintained, and to promote social progress and better standards of life in larger freedom ...’ Franck’s book is a demonstration of how this ideal programme has been crystallised into laws and institutions and an attempt to assess their effectiveness as well as to indicate the difficulties in the way of what remains to be done, and how these may best be tackled. ‘The task in fairness discourse is not to achieve quick, temporary relief ... but a grander objective. Step by step, slowly, we want to bring to the global agenda a heightened interest in making the expanding universe of international law fair.’

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