Introduction
The development of precise and secure concepts, their organization into rigid categories with logical subcategories, and the demonstration that these categories coherently distinguish themselves to structure a scientific discipline is a methodological requirement of dogmatism. However, why is this necessity a mandatory logical condition in social sciences like Law? Why is constructing a concept such as “international justice” as an infallible constant desirable?
Perhaps the answer is to provide evidence that the concept of “international justice” is valid insofar as it is the same or has the same features wherever one reads about it. So, one can say that reality tests the theory.
Reality tests the theory is a fair game when Nature produces the reality because Nature is not endowed with will and intentions but moved forward or backwards, except for the Quanta World, by fixed mechanical Rules very well predictable following The Third Newton´s Law.
Unfortunately, jurisprudence encompasses concepts that are not as predictable as a tennis ball, which, when thrown against a wall a billion times, will bounce back every time. In contrast, legal concepts, especially in International Law, are more akin to atomic particles; when thrown against a wall, they may bounce back, pass through to the other side, or even vanish into thin air.
In some ways, legal categories in International Law recall the Tale of the Wise Old Woman.
_ “What is International Justice?”, would the “States´practice” inquire the jurist like the deceitful boy did in that tale, to whom the jurist, portraying the wise old woman, would answer:
_ “It is in your hands to define it”.
Constitutive Instruments
An essential aspect of any concept of something depends upon the definition of its foundation or constitutive instrument.
_ “What is the constitutive instrument of International Justice?”
_ “Any one.”
Indeed, when we look at the States´ practice, we are authorized to respond that the constitutive instrument may be any document, according to that States´ practice convenience: A bilateral act such as an agreement (foundational document of the International Court of Justice and the International Tribunal of the Law); an unilateral administrative act issued by an organization, for instance, the Resolutions1 nº 827/93 and 955/95 of the Security Council of the United Nations, which created, respectively, the International Criminal Court for the Former Yugoslavia and the International Criminal Court for Rwanda; the military proclamation2 by a General to a defeated nation after a war, as such was case of the International Military Tribunal for the Far East, which was established by Douglas MacArthur, General of the Army and Supreme Commander for the Allied Powers in face of Japan.
So, in light of those cited examples, the constitutive instrument of an international judicial institution varies in a quite wide range, which stretches from an agreement among nations consenting with it to an act of a General towards a country losing a war.
“In the antechamber of a court, a very large wig was permanently placed on a hanger behind the door, by strict order of the Court’s President. When a curious new member of the bench inquired about it, he received an explanation: The oversized wig is available to assist a colleague who forgets their own, and its considerable size allows it to fit any judge’s head, even though it does not sit well on anyone’s head.”
The Problem of the Juridical Nature: The “Volonté Générale” of Rousseau and Hobbes´s Leviathan
Having due regard to those considerations concerning the foundational documents of an international judicial organization, the problem does not lie exactly on the documental variety but rather on the lack of coherence drawn from it. Regarding a State that runs under the rule of law, the underlying basis or principle of the Domestic Justice is the State´s Constitution, and that is a worldwide pattern. On the other hand, it is possible to understand that the judicial authority upon each citizen of the State is the result of the a “Social Contract” similar to that one Jean-Jacques Rousseau describes in his theory, Contractual Theory of Society.
Upon examining the diverse constitutional instruments of international judicial organizations, it appears that States’ behavior in the extraterritorial plan mirrors how citizens behave within territorial confines. This suggests that the “volonté générale” is a tangible reality under normal circumstances, when judicial organization results from agreements, but becomes a “fiction” that conceals the “power” of a more dominant country during times of war or conflict. That “power”, certainly, is not the fruit of only one dominant nation but is made of up allied States. In fact, the framework established within the Security Council, particularly among its permanent members, represents, beyond the usual conditions under which international justice is established by consensus, the pinnacle of dominant global power.
Analyzing the variety of constitutional instruments of the international judicial organizations, it seems that States behavior within the extraterritorial stage such as citizens act within the territorial limits, in the sense that the “volonté générale” is a reality in ordinary conditions but a “fiction” behind which lies the power of the authority pertaining to the country that is “stronger”, when it comes to a situation of war or conflict. This also means that Rousseau´s theory, just as it does not fit very well the real relationship citizens-State-law, it is also deficient to clarify how Sovereignties inter-act in the international layer. Under Thomas Hobbes´s perspective, the Security Council is the “necessary device” to the world for ensuring the collective security in the inter-State relationship.
Conclusion
When building concepts in International Law, it is crucial a conciliation between the concepts as they should be, according to a juridical logic, and how the concepts are in reality, in pursuance of the States´practice. On that account, sketching a concept of Justice in the International stage is extremely complicated when compared to the counterpart of Justice in the States´s systems because, as mentioned, States will follow, when managing International Justice, the convenience of the momentum. In the internal reality of the States compromised with the rule of law governed by Montesquieu´s thoughts, there is not such a margin for “convenience”.
“Captured only by the aspect of the direct relations among States and their immediate sovereign conflicts, with the exclusion of the vast element of meta-national disputes tangent to the direct private concerns of their nationals, International Justice is a supra-national entity that is tasked with applying rules, mirroring the idea of judicial authority within the domestic legal systems, but with distortions inherent to the ultimate instances of the State-State bonds.”
