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.’

Fairness is Franck’s word for what he likes to see and wants to see more of – rather as ‘decency’ was Orwell’s word for what he wanted to see. The word occurs neither in the Statute of the International Court of Justice nor in the Charter of the UN, and only once in its human rights annex, the Universal Declaration of 1948 whose Article 10 ordains ‘a fair and public hearing’. But ‘fairness’ is as good a word as could be hit upon to cover the whole mighty range of international laws, rules and regulations, and institutional sticks and carrots which Franck summarises and expounds.

He begins with a sensible working definition. Fairness is ‘a human, subjective, contingent quality which merely captures in one word a process of discourse, reasoning and negotiation leading, if successful, to an agreed formula located at a conceptual intersection between various plausible formulas for allocation’. Refinement of that definition and the problems of using it practically are then mulled over with reference to a variety of relevant writers: Locke and Kant, Rawls and Nozick, Dworkin and Hart. ‘Fairness discourse’, as he repeatedly calls it, is sociably open to every sort of constructive contribution, but there are two ground rules which are absolute: ‘No Trumping’, i.e. it is impermissible for any party to bring to the negotiation an un-negotiable first principle; and secondly, the Rawlsian ‘Maximin’ principle, ‘that inequalities in the access to, or the distribution of, goods must be justifiable on the basis that the inequality has advantages not only for its beneficiaries but also, to a proportionate or greater degree, for everyone else.’

The rest of Part One is a demonstration of how various forms of unfairness/injustice can be eased out of the administration of law in the international courts through the uses of equity. These pages get technical at times but the subjects under discussion are of general interest and concern: protection of the moon and of Antarctica, and the allocation of land and sea resources in general, incidentally introducing the morally attractive idea of a ‘common heritage’ which, since its launch in the Law of the Sea debate, by now has application to the whole of the environment.

All the subjects Franck deals with illustrate in one way or another how ‘fairness discourse’ has affected or at any rate come close to affecting this or that area of international governance. They come in three groups, the first of which is headed: ‘Fairness in Empowerment of Persons and Peoples’. Fairness to persons means, predictably, civil and political human rights; and among them pre-eminently, ‘the democratic entitlement’, something which has recently been acquiring exceptional stature in UN practice and international law, and as to which Franck sees no particular difficulties. Fairness to ‘peoples’ is, he admits, a lot trickier, though even more valuable. It means dealing with every size and seriousness of claim made under the banner of ‘self-determination’ and it requires a patient search for solutions which will be fair to majorities as well as to minorities and which will not destroy the international system that contains them both.

The second group of subjects is ‘Fairness and Institutional Power’. This covers the International Court of Justice (Franck’s scrupulous examination of the charge that its judges do not and cannot act impartially is persuasive), the UN Secretary-General in the exercise of his ‘good offices’ and practice of ‘quiet diplomacy’, and the Security Council, in two aspects: its interventions to prevent the governments of ‘sovereign’ states from acting in ways they wilfully think fit or to punish them for having done so (most notably and recently, Iraq, Libya and Yugoslavia), and its varied repertoire of activities, from truce-patrolling and peace-keeping at one end to full-scale military operations under the banner of collective security at the other. What the Security Council does is the subject of so much reportage and analysis that not much of what Franck says about it can be original. What is unusual is his thoughtful discussion of the great, indeed ultimate question, brought uncomfortably to the fore by Libya’s persistence in defence of its sovereign rights: can, and dare, the International Court of Justice sit in judgment on the Security Council’s actions? There is also a chapter entitled ‘Just and Unjust War’ which amounts to little more than a confirmation that in this field of international affairs, too, legal norms have evolved to serve the common interest.

The third group of subjects all have to do with fairness in the commonly accepted meaning of distributive justice. Some of them will be familiar: environment protection, aid programmes, resource sharing, technology transfer, even market stabilisation (Gatt etc). International investment law presents a much less familiar field, but is worth the effort because of the high political importance behind it (the expropriations that come with revolutions and nationalisations, for example) and because whatever ‘fairness discourse’ there may be about it seems likely to produce an unusual degree of disagreement among the legal experts.

Thus runs the Franck report on the expanding empire of fairness: achievement in some fields, progress in others, at least the beginnings of ‘fairness discourse’. He is magisterial, as he is well qualified to be. He is also enthusiastic and optimistic, as we might all like to be. But is the news, I wonder, so largely good? There are grounds for doubt. He knows there is bad news as well as good, and there is scarcely an item of it he does not notice. But those noticings are sotto voce beside the dominant tone which makes confident, even triumphalist reference to ‘the global community’ and what he believes is an ever-developing human consciousness of it, ‘community’ evidently signifying something other and more than that international ‘society’ of states we’ve been familiar with for many decades, inferring rather the active consent and will of the people within it. It makes cheerful and inspiring reading. There is nothing like speaking of something as already existing when you are working hard to make it exist, and perhaps that is what Franck is unconsciously doing; but I can’t believe that it already exists, or is conceivably attainable, to the extent that he hopes or believes.

Of whom, then, does this ‘global community’ consist? Who has a stake in it? Who are its full-time citizens? For my part, I can’t see that it contains more than a mutually supportive mix of élites and special interest groups – the élites of diplomacy and international organisation; the worlds of international finance, business and communications; the mixed élites, interest groups and communities of arts and science and, of course, human rights and humanitarian activism. Everyone involved in the UN and with international law must by definition be part of it; people like Professor Franck and his ‘superb students from all over the world’ and the hosts of fellow experts capable of operating the ‘mature, complex system’ which they alone by now can understand. Millions of people living and working all over the world certainly appear to be involved in global community, and it is in their interest that such a community should be believed to exist. It may be in everyone else’s interest, too; I admit that I myself (who no doubt have to be placed among the élitists) believe it to be so. To that extent, I am a Franckophile.

But I can’t help thinking that much of our easy ‘global-village’ and humanitarian talk is sentimental and self-indulgent, and can’t be counted in with this committed globalism. The ground on which I might most readily be proved wrong is that of human rights. Don’t the active memberships of transnational NGOs like the Roman Catholic Church and Amnesty International, and the large sums of money raised and the compassion felt for foreign disaster victims, show that I’m wrong? I don’t think so. The media which elicit those perhaps globalist feelings are the same media which can tap at will deep reservoirs of nationalist and xenophobic feeling. Who does not suspect that the same person who gives a fiver to Save the Children one day, and hopes for UN success in former Yugoslavia the next, may at the same time weep for the Cornish fishermen, and denounce the European Court of Justice as ‘a foreign court’? How many people outside my listed élites and interest groups know and actively care that the UN to which they probably pay lip-service is year by year more starved by their governments of the capacity to do the peace-making, fairness-promoting things they conventionally wish it would do?

It is significant how lightly Franck passes over most of the awkward questions which by now have to be asked about the very foundations of the fairness faith: human rights and (the first of them, according to Franck) democracy. The one he does not pass lightly over – and it is indeed a grim one – is the dysfunctional absurdity of the current cult of self-determination associated with what he strikingly calls ‘Post-Modern neo-tribalism’. He gives a good account of the work of the several UN bodies and their European and American regional counterparts whose job it is to promote observance of the multilateral human rights treaties to which states are in varying degree committed. But he notices only en passant the fearful incompatibilities lurking just beneath the surface of the marriage of human rights and democracy, and notices scarcely at all the rejection of several of our ‘Western’ human rights fundamentals in areas of the world which matter much more now than they did to the makers of the UN in 1945: East and South-East Asia, and the regions of Islam.

Franck’s ‘fairness discourse’ is a fine and generous idea, presumably not unfamiliar to theorists of conflict resolution and practitioners of conciliation. Of the two conditions he attaches to it, the ‘maximin’ principle looks to me like a sophisticated version of what market-forces ideologues have long sold to us as ‘trickle-down’, and liable therefore to turn out a fraud. His other conditional principle, ‘No Trumping’, is very reasonable. The explanatory example he gives is drawn from religion, the uncompromising claim to divine authority. Thereafter, however, ‘No Trumping’ more or less disappears. The only subsequent example I have spotted is from a row within Gatt about Mexican-caught yellow-fin tuna. ‘No Trumping’ surely deserves more notice than this. His neo-tribalists (ETA and Herri Batasuna, or the IRA and Sinn Fein, to give just two examples) obviously hold hyper-nationalist trumps in their hands. But do such trumps not lurk in the back-pockets of many big and more respectable players? I think they do – China, for example, which Franck virtually ignores. This is no doubt partly because he is not sensitive to the historical depths beneath contemporary phenomena, but it must also be because China represents all the interests and tendencies which cast a shadow over his spreading reign of fairness.

China is a great power which is behaving very much in the way that used to characterise Great Powers, as the world once unembarrassedly called them. Cautiously willing to participate in those bits of global management that fall to the Security Council and very willing to join in world trade, it is neither going to be pushed around nor is it afraid to threaten to push others around, and it will buy only those bits of the ‘Western’ human rights agenda which are compatible with its profound national self-consciousness. Here is a hand bursting with trumps.

Fairness discourse is not what Great Powers think about when the national chips are down. Franck knows this to be the case so far as his own country is concerned. At least seven times (including the famous ‘Nicaragua v. USA’ case) he shows how America’s participation in contemporary international law-making and organisation has had self-serving reservations. And when he looks at the working of the Security Council, where Great Powers congregate and are given leave to flex muscle for the global good, he seeks in vain (as all seekers have sought) for evidence of consistent principle. It can be argued that what the Security Council has managed to do since the end of the Cold War has been for the common global good rather than otherwise; also that more such good would have been done if the Council had been more active. But this has to do with order, not fairness.

There’s a screw missing somewhere in the middle of Franck’s construction. He knows that ‘order and stability v. justice and change’ is ‘the great substance and dichotomy of all fairness discourse’, and hardly needs to call our attention to the amount and kind of change needed to make the world a fairer one. He can’t be dismissed just by saying that he’s a utopian. But perhaps one can say that what in the way of fairness has been achieved so far, or (as would be more accurate) declared so far, is only the foothills of the range he seeks to cross.