By Deepanshu Mohan (@prats1810), O.P. Jindal Global University
A United Nations tribunal constituted under Annex VII to the United Nations Convention (UNC) on the Law of the Sea at Hague submitted its verdict recently on a unilateral arbitration instituted by Philippines on June 21st, 2013 questioning the validity of China’s “nine-dash line” claims in the South China Sea (SCS). In a fairly reasonable and comprehensive verdict, the Tribunal concluded, “to the extent China had historic rights to resources in the waters of the South China Sea, such rights were extinguished to the extent they were incompatible with the exclusive economic zone provided for in the Convention.” In other words, the verdict found that there was no legal basis for the People’s Republic of China to claim historic rights to resources within the sea areas falling within the “nine-dash line.”
China, in a quick rebuttal refused to either acknowledge or accept the UNC ruling while reaffirming its earlier view that the proceedings went against the international law (due to the unilateral nature of the complaint filed by Philippines). I am neither an expert in international maritime law nor can I comment on the likely consequences of the verdict on the future of China’s plan in the region, in establishing an Air Defense Identification Zone or (re)viewing the U.S. Freedom of Navigation Operations (FONOPS) in the SCS. Having said that, there seems to be a more apposite, underlying issue here that surfaces from the international institutional landscape of global justice today.
In a fascinating article, “The Problem of Global Justice” written by one of the marvelous philosophers in recent times, Thomas Nagel (2005), noted how global justice as a normative concept has much less empirical significance and is not a viable subject for deliberation (especially in an environment where noncompliance by a member party to a binding legal action isn’t met with strong deterrence or sanctions). “It seems to me very difficult to resist Thomas Hobbes’ claim about the relation between justice and sovereignty” and “if Hobbes is right, the idea of global justice without a world government is a chimera”, said Nagel. And this is a reasonable claim to make if we carefully scrutinize the general response pattern amongst sovereign member nations threating noncompliance on, for instane, more international court of justice (ICJ) decisions.
Aloysius Llamzon (2007) published a paper addressing the above issue (studying ICJ’s final decisions since the case of Nicaragua vs. USA), providing a number of reasons as to why ICJ’s “flawed” jurisdictional architecture can be blamed by being based entirely on a consent-based model. Consent alone cannot be used as an effective mechanism for enforcing some just action. Justice, in its capacity to reduce injustice, warrants an authority or agency to discharge the mandate to deliver justice through a socially realized means under any rule of law.
The idea of global justice is vital normatively and is an idea that needs less moral and ethical scrutiny. What is critically needed is an effort to reform (pre)existing institutional arrangements aiming to minimize injustices. Under a Hobbesian and Rawlsian institutional structure of justice, as Amartya Sen (2009) argues in The Idea of Justice, the above question would qualify as a “loose talk.”
For the requisite principles of justice to be applied institutionally or have any significant impact, in a Rawlsian or Hobbersian structure, a sovereign state’s existence is a must. In an absolutist Hobbesian world, the concept of sovereignty in a society will be defined as a person or body of persons who (a) have been given the right of governing through the social contract and (b) have the “three marks” of sovereignty, i.e., control of the military, ability to raise money and control of religious doctrines.
While the demand of a sovereign global state appears very difficult realistically, questions on the operational framework of global justice seem impossible to address to “transcendalists” (applicable to Rawls and Hobbes in Sen’s views) who theoretically argue for a perfect outcome and process for justice in a given setting.
The maximization of interest for a nation-state (on which most political theories are based) governs as a rational, primary locus of political legitimacy and the pursuit of justice. When we are faced with the question of collective action on a global scale facilitated in a mutually cooperative way, it remains quite unclear what could then play a comparable role. It would be pertinent here to exclude the issue attached with the universality of certain basic human rights (or some form of minimal humanitarian standards) in the context of international criminal law–or even international trade laws where we have seen how international cooperation and recognition work better and are more visible.
The issues that remain unaddressed and may be more pertinent to concerns similar to the one raised here with respect to the China vs. Philippines arbitration include the relationship between justice and sovereignty and the limited scope of equality as a demand of justice. This is the premise of Thomas Nagel’s work where he identifies these as key problems in his study. According to Nagel (2005), the link between justice and sovereignty depends on “the coordinated conduct of large numbers of people, which cannot be achieved without a law backed up by a monopoly of force.”
Collective Self-Interest is difficult to be realized by an independently motivated self-interested state of individuals unless each state has some form of assurance that others will conform if it does. And that assurance, as Nagel presents in his thesis, requires the external incentive provided by the sovereign, who sees to it that individual and collective self-interest coincide. At least among sizable populations, it cannot be provided by voluntary conventions supported solely by the mutual recognition of a common interest or consent.
Even basic economics argues that, in a given suitable environment, a rational individual or a collective homogeneous group (of like-minded individuals) may seek to maximize his or her or its own interests vis-à-vis the others, unless incentivized or deterred in any way (by law or practice) to act in some form of an alternative preference, where the other group’s interest takes precedence over one’s own. Thus, in moving towards the dominant and most revered path of transcendental justice (that Rawls and Hobbes envisage in their theories of global justice), it is critical to develop institutions or at least reform existing international institutional arrangements in a way where strong incentives and sanctions are used as powerful tools for generating consent among mutually affected members unless a universal vision for a global state is created (which I think is not a possibility to realize).
It is also important that, beyond illegitimate structures of global power working towards the best interests of the most powerful nation-states, a more self-assessing institutional mechanism is made available by institutions for reflecting upon noncompliant members or those threatening noncompliance (as in China’s case here) and to further action in a prudential accord.