Title: Can International Justice Create Peace? Reflections on Kelsen’s Thoughts on International Law and the Judiciary
Author: Dr. Thamil Ventham Ananthavinayagan is Teaching Associate at University of Nottingham. Prior to that he was a lecturer for international law, international humanitarian law and international criminal law at Griffith College Dublin.
Hans Kelsen, an Austrian jurist born into a family of Jewish faith, never wanted to become a legal academic. He rather wanted to become a physicist, mathematician or philosopher. But his decision to enter the legal profession was driven by practicability. And yet: his eventual decision in favour of the law bestowed upon him the accolades as one of the most significant international legal academics of the 20th century. Surely, his Jewish belonging, the trials and tribulations he faced during the First and Second World War had greatly influenced him to become such a renowned international legal academic. Against this backdrop, Kelsen’s views on centralising the judiciary, his vision on the United Nations and, last but not least, an all-encompassing World Court generated much scholarly debate and greatly influenced the evolution of the international legal order as we know it today. To this end his -inter alia- The Law of the United Nations, Introduction to the Problems of Legal Theory and What is Justice? had profound impact on future legal theorists, practitioners, academics and law students. Kelsen understood international law as a law of its own right. In this short article, the question to consider is: how did Kelsen envisage international justice to defuse disputes, end anarchy and create peace through international justice?
Kelsen acknowledged the enhanced importance of the courts for the purpose of developing international law, which is confirmed with the growing number of international judicial bodies in the second half of the 20th century. One of these was the International Military Tribunals for the Far East. One of the judges who had worked on this Tribunal was Justice R. Pal, who had later enunciated at a meeting of United World Federalists in Japan in 1966 as follows:
I have a firm faith in the mission of law in the matter of world peace. If we are sincerely cherishing a desire for creating a peaceful world-order, we must look to law. Such a world-order will be possible only if we succeed in bringing the world society under the reign of law, – under the might of that most reasonable force which alone can check the fatal unhinging of our social faculties. Law alone is entitled to claim recognition as the most reasonable of the forces which can help shaping the human society in the right form.
So, how to argue for peace through law in the Kelsenian manner? It was Hans Kelsen who had argued that the system of law should be mutually consistent and win force from a fundamental Grundnorm (i.e. basic norm). To this end, the distinctive features of Kelsen’s jurisprudence are that ‘(1) that the nature of law is essentially tied to its use of sanctions, and (2) that the normative force of law was only explicable by reference to a non-natural transcendent fact, what Kelsen called the Grundnorm.’Insofar any hierarchy of law exists, every legal rules must be defined and applied by reference to the legal system of which it is a part. This begs the question as how the binding force of the judiciary becomes evident and why had it failed at the time of his writings?
Kelsen argued that ‘the binding nature of law and its entire existence lie in the objectivity of its validity’. In his view, the failure to create just conditions and deter war was located in the simple fact that the executive was favoured over the judiciary. So, for Kelsen, peace could ‘be guaranteed only by an international court of justice operating in relation to disputes between states as a higher, impartial third party, with an international police force under its command.’ For him, a supranational judicial organ with decisive actions should be in the position to encounter war much far more than diplomatic, political or economic subscriptions.
Referring to the opening question for this article -as how Kelsen envisaged to create peace through justice- the short answer to this complex topic in light of the scope of the article is: legal cosmopolitanism. Kelsen argued for a community united and inspired by a common humanity. He furthered that universal morality, universal law and universal state are the constitute elements of a compact normative unity. Surely, Kelsen achieved a system that is able to foster normative consistency, disregarding the content of its operation. The law holds the currency to fundamentally change the world. Nonetheless, further consideration has to be accorded to the question if international law is solely a self-fulfilling prophecy, where the judiciary is propounding and extending hegemony. However, this would invert the idealism of Kelsen: normativity is defining for every legal system, while legal normativity can be differentiated from moral normativity.Insofar as the judiciary values the normative content of law, no moral normativity is accorded to it, Western or non-Western. In the end, as Kelsen had envisaged, the goal is the creation of peace through the law.