PRODUCTOS Y PREPARACIONES REPRESENTATIVOS DE LA COMUNIDAD DE ARAGON

In general, the principles of social justice concern the relationship between constituents and their societies. In fact, the possible determinative relationship between justice and societies was alluded to by Morris Ginsberg who claimed that it is justice that helps establish and maintain the institutions necessary for “social organisation” (see 1965: 67-68). Similarly, David Miller argued: “justice is more than simply a virtue that rulers should possess: it is fundamental to the institutions that turn a mass of individuals into a political community” (2003: 74). Here, both Ginsberg and Miller appear to echo Rawls’ early depiction in his Theory of Justice that: “justice is the first virtue of social institutions” (1999b: 3).

For this thesis, institutions are defined as social arrangements that exist in the form of a collection of formal rules, norms and practices that guide and govern social action (see Duffield, 2007; Bull, 2002: 68-71; Rawls, 1999b: 47-52; Turner, 1997: 6; North, 1990: 3-53; Keohane, 1988: 382-386; Krasner, 1983: 2). According to Rawls, institutions are required to be embedded with the principles of social justice as a means for helping to overcome the inevitable conflict of interests that arise in political organisations and thus the principles of social justice help to establish an environment that buttresses the required cooperation for achieving mutually beneficial goals (see 1999b: 4-5). Moreover, Rawls suggested that principles of social justice help ensure that decisions are considered and actioned by relevant actors and institutions so that they produce outcomes that are desirable for all (see 1999b: 4- 5). This thesis argues that the principles of social justice, and subsequently the institutions they underpin, primarily serve two roles within a society. First, and as identified by Rawls, the

71 principles of social justice “provide a way for assigning rights and duties in the basic institutions of society” so that mutually beneficial endeavours can be pursued (see 1999b: 4). Second, once these rights and duties have been assigned to the relevant actors and, as often happens, formalised in law, institutions embedded with the principles of social justice exert a normative influence that can help ensure compliance with said laws by identifying notions of right and wrong conduct (see McLaughlin Mitchell and Hensel, 2007; Checkel, 2003; Raustiala and Slaughter, 2002: 540; Risse, Ropp and Sikkink, 1999; Kratochwil, 1989; Keohane, 1988). The remainder of this Section will discuss these two roles in more detail.

3.2.1 Justice, Institutions, Rights and Duties

The relationship between justice and the assignment and distribution of rights and duties is a core feature of the academic literature pertaining to notions of social justice. For instance, John Passmore outlined that social justice demands that societal agents fulfil the “obligations” and recognise the “rights, which flow out of one’s membership of a political community” (1979: 31). Likewise, Brian Barry argued that: “whether we are dealing with individual acts or whole social institutions… the subject of justice is the distribution of rights and privileges, power and opportunities, and the command over material resources” (1989: 292). Finally, and in relation to international society, the distribution of rights and duties formed a core feature of Bull’s discussion on the role of justice within international relations (see 2002: 75- 82; 2000b). For Bull, because a plethora of “agents and actors” exist within international society, including states, individuals and organisations, notions of justice are required to help us identify which of them hold “moral rights and duties” and the manner in which they are distributed (see 2002: 78). According to Bull, three forms of justice exist in relation to the study of international society, international or interstate, individual or human and

72 cosmopolitan or world, each of which depicts rights and duties as being held by, or at least intended to support the interests of, different agents (see 2002: 78).

Bull outlined that international or interstate justice concerns the rights and duties held by states not only under international law but also by virtue of their membership to international society (see 2002: 78). An example of these state rights and duties would be the right to sovereignty and its accompanying duty of non-intervention which are enshrined within the United Nations (UN) Charter (see UN, 1945). Furthermore, because states, and their representatives in the form of statespeople (see Jackson, 2000: 23-25; Wheeler, 2000), can continue to be considered the dominant actors within international relations (see Bell and Hindmoor, 2009; Mearsheimer, 2001; Waltz, 2000; 1979; Deng et al, 1996), they need to be recognised as the primary holders of rights and duties within international society.

Contrastingly, Bull defined individual or human justice as the rights and duties held by individual human beings under international law (see 2002: 79). Initially, notions of individual justice were grounded in the doctrine of natural law but more recently, perhaps since the production of treaties such as the Universal Declaration of Human Rights in 1948 (see UN, 1948b),102 _{individuals have become the subject of positive international law (see Bull, 2000b:}

220). However, despite this creation of individual focussed positive international law, it is states that are primarily responsible for enforcing and protecting these individual rights; thus, arguably establishing a reality whereby states hold a duty to uphold individual rights making notions of international and individual justice mutually dependent on one another.

102 _{This forms part of the three treaties that are considered to be the International Bill of Rights. The other}

treaties included are: the International Covenant on Civil and Political Rights (see UN, 1976a) and its two additional protocols (see UN, 1976b; 1989), and the International Covenant on Economic, Social and Cultural

73 Finally, Bull described cosmopolitan or world justice as existing when the rights and duties held by all actors within international society that concern “what is right or good for the world as a whole” (2002: 80-81). According to Bull, cosmopolitan justice does not concern a society of states but a “society of all mankind” (2002: 81). This idea suggests that certain interactions and debates within international society, such as arms reduction talks or discussions pertaining to environmental issues, concern humanity in its entirety. Thus, it should be noted that cosmopolitan justice does not specifically refer to the rights and duties held by constituent members, namely states or individuals, but instead a concept that controls action within international society in order to preserve the well-being, ensure the survival and promote the common good of humanity as a whole.

Now, given the ICC’s focus on the actions, liability and grievances of individuals it could be perceived that notions of individual justice are most relevant to its operation. However, in actual fact the ICC finds itself in the unusual situation where all three forms of justice could be classed as applicable, a reality which is potentially an issue insofar as it might become unclear whose interests the Court is promoting. On the one hand, the fact that the Court has an independent prosecutor with the power to open investigations independent of state consent, albeit with a jurisdiction limited to the state parties to the Rome Statute, is perhaps evidence of cosmopolitan justice; a global prosecutor, void of any national ties, pursuing justice for victims of international crimes on behalf of international society as a whole. On the other hand, the principle of complementarity (see Schabas, 2011a: 190-199), and the fact that the ICC has no independent police force, means that states form a primary component of the Court’s enforcement mechanism. This means that international justice becomes applicable for the ICC because it can be argued that states continue to hold the primary duty to not only prosecute international crimes within their own domestic criminal justice systems

74 but also enforce the decisions and requests of the Court in good faith. As will be alluded to in Chapter Seven, this could be seen as an issue for the ICC because there is an argument that suggests the Court has been unable to break-free from the shackles of the society of states. Nonetheless, the principle of complementarity, as well as others such as the irrelevance of official capacity which removes notions of sovereign immunity for government officials (see Schabas, 2011a: 244-247), perhaps indicate a notion of individual justice because they promote the rights of individuals by making the norms of sovereignty, non-intervention and sovereign immunity conditional on broader respect for globally recognised human rights standards; a vision often termed sovereignty as responsibility (see Deng, 2010; Slaughter, 2006; Armstrong, 1999; Frost, 1999; Deng et al, 1996). Thus, although the ICC falls short of a cosmopolitan revolution within international society, it does reflect a normative shift within international society whereby notions of individual justice are viewed in equal regards to international justice (see Gaskarth, 2012: 446; Ralph, 2007). Nevertheless, as discussed above, it can be argued that the duties of compliance with the ICC’s normative ideals and its physical demands remains in the realm of states.

Having looked at who holds rights and duties within international society, now it is important to consider how they are distributed amongst its constituents. According to Bull, rights and duties can be distributed amongst societal members in accordance with two notions of justice: arithmetical and proportionate (see 2002: 77). For Bull, arithmetical justice holds that rights and duties are distributed equally between members of a society, in this case both individuals and states, regardless of their capabilities or status (see 2002: 77). Now, this idea of equal distribution of rights and duties is a mainstay of the academic literature. For instance, Amartya Sen argued that: “every normative theory of social justice that has received support and advocacy in recent time seems to demand equality of something – something

75 that is regarded as particularly important in that theory” (2009: 291). Likewise, John Harris purported that: “the principle that people’s lives and fundamental interests are of equal value and that they must therefore be given equal weight has immense intellectual appeal and intuitive force” (1988: 75). These claims of the importance of equality are outlined in Rawls’ first principle of justice which dictated that: “each person is to have equal right to the most extensive scheme of basic liberties compatible with a similar scheme of liberties for others” (1999b: 53). Finally, according to Ronald Dworkin rights can only be taken seriously if they are distributed in accordance with the principles of “political equality” which demands that “the weaker members of a political community are entitled to the same concern and respect of their government as the more powerful members” (1977: 198).

This notion of an equal distribution of rights and duties would appear to be the foundation upon which contemporary international society is founded. For example, Article 2 of the UN Charter appears to affirm the equality of all states: “[the UN is] based on the principle of the sovereign equality of all its members” (see UN, 1945: 3). Similarly, the Preamble of the Universal Declaration of Human Rights asserts a “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world” (see UN, 1948b). This wording suggests that all states and statespeople hold equal duties to respect human rights and hold those who violate said rights to account. As alluded to above, the statecentric nature of international society, which makes an independent enforcement mechanism a difficult proposition, means that the ICC requires the cooperation of states to enforce its decisions.103

This means that it can be argued that if the ICC is to be fully effective then the Rome Statute

103 _{The International Criminal Court’s (ICC’s) reliance on cooperation to achieve its goals will be discussed further}

76 needs to be ratified by a large number of states, so that it becomes almost universal in its jurisdiction. In fact, the importance given to achieving a broad ratification of the Rome Statute is perhaps affirmed by the time and resources dedicated to achieving it by the ICC and its civil society supporters.104 _{The rationale behind prioritising full ratification and implementation of}

the Rome Statute is linked to the idea that international society is structured in accordance with, what Bull termed, arithmetical justice, the equal rights and duties of states. In line with such a vision, it is presumed that by extending the ICC’s jurisdiction, via full ratification and implementation of the Rome Statute, would emphasise the equal duties of all states to uphold the norms and values promoted by the ICC.

However, the extent to which international society is in fact ordered in accordance with the principles of arithmetical justice is debatable. This is because, despite the wording of the UN Charter, the UN system and international society more broadly is in fact hierarchically structured (see Clapton, 2014; 2009; Clark, 2009a; Lake, 2009; Lake, 2007; MacDonald and Lake, 2008; Kang, 2004; Simpson, 2004; Dunne, 2003). Moreover, the practice of diplomacy is not built in accordance with equal status of all participants. Instead, it is dominated by underlying global power structures whereby these agents with more power invariably have more influence by virtue of being able to shape the agenda and coerce others to accept their point of view. Thus, although in theory all states and statespeople hold equal rights and

104 _{Parliamentarians for Global Action (PGA) have programmes dedicated to both gaining universality for the ICC}

and achieving full implementation of the Rome Statute into national law (see PGA, 2015a; 2015b). Likewise, the United Nation’s Human Rights Council (HRC), in their Universal Periodic Review, continually call for non-ICC members to sign and ratify the Rome Statute as a means for displaying their commitment to supporting and upholding human rights (see Global Justice, 2015). Finally, since the Sixth Assembly of States Parties (ASP) Session in December 2007, the ICC has annually released reports entitled: Plan of action of the Assembly of

States Parties for achieving universality and full implementation of the Rome Statute of the International Criminal Court. These can be viewed on the ASP Session section of the ICC Website (see ICC, 2017d).

77 duties, those states that exist at the top of the hierarchy arguably possess additional rights and duties pertaining to the governance of international society.

An institution that is indicative of this hierarchical structure is the United Nations Security Council (UNSC) which is comprised of five permanent members who hold the power to veto. This veto power is demonstrative of these five members holding additional rights, and subsequently duties, within international society, a role they hold solely on the basis of their historical standing as international actors. In the context of the ICC, the extra rights and duties held by the members of the UNSC, particularly the permanent ones, are depicted by Article 13(b) of the Rome Statute which awards the Security Council the ability to refer situations to the Court, regardless of if the state is a party to the Rome Statute or not (see ICC, 2011b: 11; see also Schabas, 2011a: 168-176). In addition to this power of referral, Article 16 of the Rome Statute details that the UNSC may, if they see fit, defer any ICC investigation and/or prosecution for a renewable period of twelve months (see ICC, 2011b: 12; see also Schabas, 2011a: 182-186). However, where these powers arguably become more indicative of the unequal distribution of rights and duties is the fact that the five permanent UNSC members hold the power to veto any attempt by the other Security Council members to refer a situation to the ICC or defer an existing one.105

Therefore, given the hierarchical structure of international society, it can be argued that rights and duties within international society are in fact distributed in accordance with what Bull termed “proportionate justice”, where “rights and duties… are distributed according to the end in view” not the principle of equality (see 2002: 77). Bull defended

105 _{This power is heavily criticised among global civil society actors, with Amnesty International leading calls for}

the removal of the United Nations Security Council’s (UNSC’s) veto powers to be removed in relation to matters concerning the commission of international crimes (see Amnesty, 2015: 3).

78 proportionate justice on the following grounds: “given that persons and groups are sometimes unequal in their capacities or in their needs, a rule that provides them with the same rights and duties may have the effect simply of further underlying their inequality” (2002: 77). In other words, because states are not equal in their capacity or their status within international society, rights and duties are distributed in accordance with notions of power, not equality, with the more powerful states, both materially and socially (see Dowding, 2016: 70),106 _{holding additional rights and duties. For this thesis, these additional rights and duties,}

particularly those held by the UNSC’s permanent members, is accompanied by a responsibility to police international society. In the context of the ICC and the regime of international criminal justice, this means that the additional rights held by the powerful states should perhaps come with an additional set of responsibilities.

The basis for such an argument is reflected by the notion that the permanent members of the UNSC are supposed to act as “great responsibles” (see Bull, 2002; 1980; 1971; Vincent, 1990) who were charged with absorbing more of the burden of maintaining international peace and security, and, more generally, upholding the norms and values upon which international society is built.107 _{The philosophical underpinnings of the idea of the}

existence of “great responsibles” is possibly defended by Rawls’ second principle of justice, the “difference principle” (see 1999b: 65-73); perhaps somewhat surprisingly given the underlying egalitarian basis of his thesis. According to Rawls’ second principle of justice,

106 _{Keith Dowding refers to material and social power as outcome and social power, with the former involving}

the physical abilities to change an actor’s decision whereas the latter is the ability to change the agenda or structures where decisions are made (see 2016: 70).

79 “inequalities of wealth and authority, are only justified if they result in compensating benefits for everyone, and in particular the least advantaged members of society” (1999b).108

Thus, the additional rights awarded to the permanent members of the UNSC, with regards to the administration of international criminal justice, arguably come as a result of the compensating benefits that an increase in international peace and security as well as a broader acceptance of human rights norms and the rule of law, all of which could emerge from the prosecution of those responsible for international crimes, would bring to all members of international society. As such, a central feature of the regime of international criminal justice, it can be argued in line with the work of Rawls, is that it is designed to shape international action away from conceptions of self-interest and towards more cosmopolitan, or utilitarian, notions of good for everyone; primarily the weakest members of society, possibly in the case of international crimes the victims, affected communities, and possibly states (see Akhavan, 2010). However, as will be demonstrated by this thesis, it can be suggested that these additional powers held by the UNSC have in fact translated into a situation whereby a two-tiered system of justice has been established, which advocates the prosecution of international pariahs and the leaders of recalcitrant states with no strong allies but allows the great powers to both protect themselves and their allies from the clutches of the Court. The Chapter now turns its attention to how institutions help bring about compliance with said rights and duties.