ANTONIO F. PEREZ1

To an international lawyer, the concept of "civil society" typically evokes feelings of inadequacy. After all, civil society—in the language of politics and moral philosophy—conveys notions of community, cohesion, and a shared sense of identity that bind individuals to each other in a common enterprise. It is this nuclear binding force that legitimizes law as the exercise of power by authorities constituted by particular communities.1 Accordingly, the most emotionally appealing visions of social organization have aspired to geographical and numerical dimensions small enough to permit a degree of interaction thought necessary to fashion "true" communities.2 Thus, the vision of ideal civil society that undergirds the classical conception of legitimate political authority has been one that assumes small-is-beautiful because small communities are the most legitimate communities.3 It is precisely this difficulty that the American founders sought to transcend in creating a constitution for an imperial republic in the United States.4 Conventional thinking in their day too questioned the legitimacy of a government for a state that exceeded the numerical and geographic bounds of a viable republic.5

Except in the airiest castles of the academy,6 nothing like this level of authority has ever been accepted about international law. Why? Perhaps because, until recently, the concept of an "global civil society" seemed like a contradiction in terms. The society that undergirded international law was not "civil" in the same sense as domestic society. Rather, it was not only decidedly "uncivil" in its tolerance of violent conduct by its constituent members, but also its constituent members were things, states, rather than persons.7 But any conception of international law that seeks to account for its normative force in terms consistent with the jurisprudence of domestic law must ultimately resort to some conception of an international community.8

It seems necessary to pursue this question. For however beautiful "the small" may be, it cannot stand in the way of the reality that "the big" is inevitable.9 The renewed concern with civil society and its breakdown within states, resulting in the loss of authority to address the problems of human existence at the microscopic level,10 must be accompanied by an inquiry into the foundations of international community life and the requirements for enabling the macroscopic problems of human existence to be addressed at the international level as well.

Thus, this paper will consider the sources of a new international civil society that could serve as the foundation for community governance in light of the work of the Council For Research in Values and Philosophy and the recent report of the Commission on Global Governance.11 It will argue that the international civil society must be characterized by freedom as expressed through participation in governance by transnational communities, solidarity among transnational communities achieved through an international division of labor in the various spheres of human life, and a pluralist conception of subsidiarity under which human beings are able to define themselves in multiple patterns simultaneously as members of several national and transnational communities. Of course, this entails rethinking international law, a task that requires first explicating its intellectual pedigree and historical foundations.

These issues have both immediate and longterm significance—immediate significance in the resolution of current debates over the allocation of sovereignty, such as sovereignty over the City of Jerusalem; and longterm significance in terms of the construction of sovereignty for the new, global Jerusalem that may await us in the 21st century. Part I of this essay will explore underlying assumptions of international law and the transformation of these assumptions. It will then consider the discrete problem of Jerusalem in light of these developments. Part II will turn to a critical analysis of the possible underpinnings of a new international law for the emerging global civil society that may well confront us in the next millennium,12 if it has not done so already.

In recent years, however, that narrative of international law has come under attack, with many deriding the notion of absolute state sovereignty. The former professor of international law, Boutros Boutros Ghali, who sits atop his throne at the Secretariat of the United Nations—some say suffering from a Pharonic power complex13—has argued that "the time of absolute and exclusive sovereignty [of the state] has passed; its theory was never matched by reality."14 The state has come under attack from below. Old forces of disintegration have been given new life by the end of the Cold War, leading to the phenomenon of utterly "failed states."15 More broadly, the attack has also come from above. In different ways and to different degrees, the problems states now face—such as ozone loss,16 and fisheries depletion17—cannot be resolved without collective governance, making each state, in some sense, the victim of a sovereignty deficit.

Once, long ago, state sovereignty was the answer to the problem of order created by the so-called Wars of Religion. Grotius and Gentili reconceived international life as a community of secular states, each holding the highest power in territory subject to its jurisdiction.18 Thus the Monarch’s power to impose his own religion on his subjects became a central tenet of the settlement of Westphalia in 1648, which in turn gave birth to the modern European state system and international law. Religion would no longer legitimately provide cause for war.19 Sovereignty ensured order, in part by making individuals merely the subjects of the state.20 A necessary consequence of the rise of state sovereignty, however, was the collapse of the ideological commitment to universal or transnational values as a source of transnational authority, a phenomenon linked to the dissolution of medieval "Christian international society" with the decline of the moral and institutional authority of the Papacy.21

In our century, however, with the triumph of the international human rights movement—spawned in no small part by the unique human catastrophe of the Holocaust22—state sovereignty has been reconceived as popular sovereignty.23 This paradigm shift has required a reinterpretation of the concept of self-determination, which international lawyers had previously seen as a corollary of state sovereignty.24 Thus, the traditional view that a "people" that had been subject to colonial rule is entitled to self-determination, including a right to its own state, has now been complemented, and perhaps even transcended, by the entitlement of all people to democracy, regardless of whether they have their own state.25 Thus, the emerging international law conception of sovereignty will perform dual functions: preserving order and permitting the exercise of freedom.

[although] as presently conceived rights are almost entirely defined in terms of the relationship between people and governments . . ., it is now important to begin to think of rights in broader terms by recog-nizing that governments are only one source of threats to human rights and, at the same time, that more and more often, government action alone will not be sufficient to protect many human rights.26

 

Does this mean that sovereignty can dispense with its historic function of assuring order? Of course not. Indeed, by calling for the fusion of rights and responsibilities, the Commission has refashioned the vocabulary of international human rights-talk into an international human duties-talk which, it believes, can provide the ultimate foundations for international order.27 Astonishingly, for a body composed of men and women of state, the Commission points to the emergence of a global civil society, in which:

core values of respect for life, liberty, justice and equity, mutual respect, caring, and integrity . . . provide a foundation for transforming a global neighborhood based on economic exchange and improved communications into a universal moral community in which people are bound together by more than proximity, interest, or identity.28

 

These values, the Commission asserts, "all derive in one way or another from the principle, which is in accord with the religious teachings around the world, that people should treat others as they would themselves wish to be treated."29

The Commission’s vision of the future of the world legal order is thus not unrelated to the religious conception of the foundations of community life.30 As James Nafziger has observed, religious institutions and sentiments can influence international law in various ways.31 In some cases, religion performs the "creative" function of generating specific doctrines,32 or the "didactic" function of communicating the substance of international law concepts to the grass-roots.33 Sometimes religion serves the "aspirational" function of setting a direction for the progressive development of international law,34 and acting as the "custodian" of higher morality serving as a check on the exercise of state power permitted by international law.35 Finally, in a world still divided by conflicting values, religious leaders can play the "mediative" role of compromising disputes, including those having a religious dimension.36

The most important change that people can make is to change their way of looking at the world. . . . Again and again, in the history of religion, this total upheaval in the imagination has marked the beginning of a new life . . . a turning of the heart, a ‘metanoia,’ by which men see with new eyes and understand with new minds and turn their energies to new ways of living.37

And, in a remarkable coincidence of views, Pope John Paul II, speaking recently to the United Nations General Assembly, pointed to the possibility of forms of organization for the exercise of the right to "national existence" other than "sovereignty as a state."38 But the Pope imposed the critical condition that the expression of sovereignty outside of the framework of the state "takes place in the climate of true freedom," in which "every nation also enjoys the right to its own language and culture through which a people expresses and promotes that which [the Pope] calls its fundamental spiritual ‘sovereignty.’"39 The Commission’s Report and the Papal address thus lay the foundations for a new understanding of sovereignty, transforming the absolute liberty of the sovereign state—itself a negative conception of liberty for the state entailing merely freedom from external restraint—into a positive conception of liberty under which persons participate in community governance.

[w]hat oppressed classes or nationalities, as a rule, demand is neither simply unhampered liberty of action for their members, nor, above everything, equality of social or economic opportunity, still less assignment of a place in a frictionless, organic state devised by a rational lawgiver. What they want, as often as not, is simply recognition (of their class or nation, or colour or race) as an independent source of human activity, as an entity with a will of its own, intending to act in accordance with it (whether it is good or legitimate, or not), and not to be ruled, educated, guided, with however light a hand, as being not quite fully human, and therefore not quite fully free.40

 

Freedom is not simply the absence of tyranny or oppression. Nor is freedom a license to do whatever we like. Freedom has an inner ‘logic’ which distinguishes it and ennobles it: freedom is ordered to the truth, and is fulfilled in man’s quest for truth and in man’s living in the truth. Detached from the truth about the human person, freedom deteriorates into license in the lives of individuals, and, in political life, it becomes the caprice of the most powerful and the arrogance of power.41

 

Some scholars have already begun to point favorably to the emerging constitutive role of transnational actors.42 Others, however, have seen in a global civil society the sources for a new tyranny, under the theory that transnational power may ultimately be used in ways that reinforce global inequalities and class inequalities within even the attenuated sovereignty of nation-states. Phillip Trimble, for example, has argued that "drastically reducing the power of governments in a move toward global communalism seems undesirable because only states can balance corporate power."43 Under this view, the weakening of national governments relative to private transnational entities can only undermine freedom and distributive justice.44

But the more compelling attack on the concept of a global civil society may well be simply that it cannot be realized. Trimble’s critique, for example, is premised on the absence of a "common, generally accepted world ideology that would give meaning to the term ‘international society’."45 Trimble adds: "There is no generally shared story of origins and history, no general political organizations, and little economic integration and social interaction. In short the characteristics of a generally unified society are lacking."46 Thus, he argues that the only way to increase the legitimacy of international rule-making is to transform, or "domesticate," international law.47 Specifically, he recommends employing domestic law-creating procedures to enact international norms as domestic law, which is presumptively authoritative.48

Trimble also suggests, however, employing rhetorical strategies under which international law concepts are translated into their domestic analogies, such as expressing the international right of self-defense in terms of the Islamic concept of jihad.49 Yet, one might argue that, if a rhetorical strategy of translation could legitimize an international law norm indirectly, could not the underlying concepts forming the basis of the translational project themselves be uncovered as common, global values in their own right? This at least appears to be the Commission Report’s premise in its appeal to universal values and the emergence of a "universal, moral community."50

But values in the abstract mean little; they must be institutionalized.51 Thus, the Commission moves from values to institutions in suggesting that the structures of the new global civil society will be transnational institutions: business and labor organizations,52 interest groups,53 media,54 political parties,55 and (although the Commission does not give specific examples) perhaps even the world religions.56 Already rights under a complex mixture of international and domestic law are being claimed in "transnational public litigation" in which natural and juridical persons other than states are claimants,57 and natural and juridical persons are becoming involved in such quintessentially state-monopolized activities as peacemaking.58 Clearly, then, the Commission has recognized a key feature in the shape of the world to come.

And this leads us back, admittedly by a somewhat circuitous route, to the City of Jerusalem. To address the question of its status under the traditional vocabulary of international law one might well wish to resurrect the corpus separatum contemplated by the General Assembly and Trusteeship Council nearly fifty years ago that in effect would have allocated sovereignty to the United Nations,59 or to consider in detail the innumerable proposals offering creative resolutions along lines of shared, joint or divided sovereignties.60 But it might be useful to focus on how the revised conception of sovereignty advanced by the Secretary-General, the Papacy, the Commission on Global Governance and by recent scholarship provides a vehicle for dealing with, perhaps even for solving, as a first step at least, the core of the Jerusalem question: the status of the Holy Places located inside the walls of the old city. Under the traditional international law framework, the historical interests of the various communities were expressed in legal claims. Based on responsibilities undertaken by the Ottoman Empire, affirmed in the British mandate for Palestine, and incorporated in the U.N. plan for the corpus separatum, the so-called status quo confirmed the rights of international community, and particularly the religions, in access to the Holy Places.61 This treaty-based pattern for preserving community interests has been reaffirmed, as Israel has acknowledged these status quo rights in its December 30, 1993 Agreement with the Vatican under which the Holy See recognized the State of Israel and commenced diplomatic relations.62 Similarly, in its Treaty of Peace with Jordan of October 26, 1994, Israel acknowledged the "present special role of the Hashemite Kingdom of Jordan in Muslim Holy shrines in Jerusalem."63 And as part of the peace process that produced the September 1993 Israel-PLO Declaration of Principles on Interim Self-Governing Arrangement, Foreign Minister Shimon Peres confirmed to the Norweigan mediator that "the holy Christian and Moslem place" were "Palestinian institutions of East Jerusalem" that "are of great importance and will be preserved."64 Thus, there seems to be an emerging consensus among the parties that the status quo in some form or another must be part of any settlement on the permanent status of Jerusalem, and that settlement by assumption will take the form of an agreement among sovereigns rather than an integration of sovereignty.

The theory of the global "civil society," however, may offer possibilities for more stable solutions, as the very problem of defining the meaning of the term "Jerusalem" reveals. To which Jerusalem, it might be and is asked, does the status quo apply? The old city or its living metropolis? As for the old city, there may potential for a convergence of views. As the former Jordanian Permanent Representative to the U.N. Adnan Abu Odeh has argued, the "essential dispute about Jerusalem concerns not the modern secular city—restaurants, nightclubs and apartment blocks, the King David and Intercontinental hotels—but rather the ancient walled city."65 Thus, he calls for a "walled city, the true and holy Jerusalem" that "would belong to no single nation or religion. Rather, it would belong to the whole world and to the three religions: Muslim, Christian and Jewish. No state would have political sovereignty over it, so that Jerusalem would remain a spiritual basin, as it was originally founded and universally conceived."66 Similarly, in its 1949 Memorandum to the General Assembly on the Future of Jerusalem, the Israeli Embassy seemed to suggest that the Old City need not be under Israeli sovereignty, although the Israeli government subsequently retreated from these views in the light of the decline of U.N. authority during the Cold War and the worsening of the conflict in the region.

The prospects for making progress on the issue of sovereignty over the Holy Places in the Old City are better than they ever have been in light of the revival of the U.N. and the momentum and legal innovation of the peace process. Of course, as a technical matter, the interim arrangements for the establishment of the Palestinian Authority and election of the Palestinian Council in the West Bank and Gaza Strip have been concluded without prejudice to those issues, such as sovereignty over Jerusalem, that will be the subject of the permanent status negotiations commencing in 1996.67 Practical precedents may yet emerge from the new facts being created on the ground during the implementation process. For example, for Holy Places outside of Jerusalem, the recently concluded Interim Agreement between Israel and the PLO provides for complex arrangements of shared control with access guaranteed for all communities, in some cases dividing responsibilities down to the level of the particular entrance of the particular site.68 These interim arrangements may well presage the kinds of tools that will be employed when the final status of the West Bank is determined.

Even so, whatever common ground might be found on the status of the Holy Places in the old city or the West Bank does not necessarily reach the Jerusalem that, according to the Knesset, is, "complete and united, . . . the capital of Israel."69 This question—sovereignty over the living, modern city—will be a much harder nut to crack and may require concepts and categories that as yet have not been imagined by scholars, much less statesmen. Rejectionists wait like vultures hanging over Jerusalem’s tortured body politic. Clovis Maksoud, for example, has recently argued in the pages of Foreign Policy that the recent Israel-PLO agreements "put in jeopardy any sovereign prerogatives to which the Palestinian people are entitled." He adds: "All the extensive and cumulative jurisprudence of U.N. resolutions on this issue are rendered irrelevant if not obsolete."70

Perhaps the Knesset, the PLO, and Arab nations as a whole can conceive of solutions in which sovereignty over the secular Jerusalem can be shared or the bundles of sovereign rights important to each community can be pulled out and reconfigured. A foreshadowing of possible solutions might be seen in the Jordan-Israel Treaty of Peace, under which Israel formally agree to Jordanian sovereignty over land owned by Israeli settlers but in effect conditioned its recognition of Jordanian sovereignty on Israel’s continued exercise of certain sovereign rights with respect to those settlers.71 But it is hard to see how formal treaty-based solutions alone could ever resolve the underlying sources of the conflict between the relevant communities.

But if sovereignty over the secular portion of the city—assuming one can concede that such a portion exists—can be reconstituted, as international law scholars explicitly and the Pope implicitly have suggested, its sine qua non will be that Moslems, Christians and Jews in Jerusalem also see themselves as something other than Muslims, Christians and Jews; in other words, whether they, and their co-religionists elsewhere, can perceive their identities as including additional dimensions, including that of residents of a territorially-defined community, a city having a rich and evolving, organic existence of its own.72 Thus, the concept of a transnational civil society—a community of the City of Jerusalem encompassing various different communities, each retaining at the same time its individual identity—may provide the basis for a sustainable settlement.

This agenda would not be unlike the task contemplated by the Commission on Global Governance’s broader agenda in the construction of the new global civil society through which persons will see themselves simultaneously as citizens of a state and as members of transnational communities. Such a reconstruction of sovereignty presumes the existence of these recreative possibilities.73 The alternative to permitting individuals to define themselves as members of multiple communities is simply impossible to contemplate. If, then, these possibilities do not exist, freedom and order may well never be able to co-exist in Jerusalem, and their failure to co-exist there will signal, as has their failure thus far to co-exist elsewhere,74 a dangerous turn for the new global Jerusalem that may await us all in the next millennium.

What might the new global civil society look like? One vision of the global future might be that it will be based on liberal capitalist premises. Francis Fukuyama moved in this direction in positing the "end of history" upon the end of the Cold War,75 but recently seems to have come to recognize that social organization requires a degree of social "trust" that cannot be derived solely from liberal capitalism.76 Others have concluded that liberal capitalism is ultimately inconsistent with a vision of community that generates a deep set of common values.77 But liberal capitalism does not need to be, just as Marxism could never be,78 a staightjacket imprisoning international life. Rather, life may take its own new forms, evolving to meet its needs and circumstances, yet in light of constant set of principles.79 However much the global civil society evolves, then, like any civil society it must address certain core questions in order to permit effective governance. As George McLean argues, governance requires the exercise of freedom, solidarity, and subsidiarity within a community.80

The absence of adequate conceptions of freedom, solidarity and subsidiarity in traditional international law clarifies the limits of governance under that regime. The traditional international law conception of sovereignty focused on the freedom of the state, its freedom from its subjects and from other states, which Isaiah Berlin quite rightly saw as a manifestation of the negative conception of freedom.81 Thus, the "community" of states lacked shared purposes.82 Under this model, interaction between states was limited to the bare minimum, undercutting the development of a sense of social solidarity; and, as a corollary of sovereign freedom, the sovereign equality of states obviated any concept of subsidiarity. How then might these conceptions necessary for community governance be realized in the global civil society?

A conception of freedom that would be acceptable in the global civil society cannot depend on any particular political, economic or social ideology.83 It would be impossible—and, ultimately, undesirable—to impose an orthodoxy.84 In any event, it is unnecessary to broach this issue immediately, for it appears that a process-oriented conception of freedom, rather than a substantive conception, is an emerging feature of the global civil society.85 This process-based concept has two dimensions: first, the institutionalization of some form of participatory governance—what Professor Thomas Franck call the "democratic entitlement"86—within states; and, second, the increasing pressure for democratic decision-making in supranational institutions, such as the European Union and the United Nations,87 although a major gap thus far in the extension of democratic decision-making has been the continued concentration of power with the wealthy states in global financial decision-making.88 Sovereignty as the expression of freedom may well be on the way to being replaced by participation as the preeminent norm of global civil society.89

On the other hand, it is worth asking whether the current absence of a substantive conception of the ends of human freedom in transnational civil society permanently impoverishes its capacities for effective governance. As Michael Walzer has recently argued, moral discourse can be understood to fit in one of two models, the "thick" and the "thin." He distinguishes between "thick" moralities, which are embedded in unique historical and cultural contexts, and "thin" morality, which transcends specific environments and achieves a kind of universality.90 While Walzer concedes that certain questions of morality must be universal, he contends that "thin" morality is unable to provide detailed answers to questions of distributive justice which, by assumption, cannot be answered without very specific understandings of which "goods" are "relevant" in any particular society from the standpoint of distributive justice.91 Walzer thus argues for a broad scope for the principle of self-determination,92 in effect relying on and justifying the traditional international law model. In sum, it seems Walzer’s insight leaves precious little room for the development of an international civil society.

Yet even Walzer recognizes that there can be movement from the "thin" to the "thick." He observes that "thin" morality permits interaction among different communities having their "thick" moralities, but that "these encounters are not—not now, at least—sufficiently sustained to produce a thick morality."93 What would happen, however, if these encounters proliferated? Walzer’s social theory of morality ultimately leaves room for the second dimension of community—solidarity; for, as Durkheim argued, while the "division of labor" separates individuals, cutting them off from the resources of primitive forms of solidarity, interactions between different groups resulting from a "dynamic density" lead to the formation of a different kind of solidarity, one that flows from interdependence.94

The global civil society must then be constructed in terms of interdependence, ironically, along lines Walzer himself reveals in his exposition of the psychology of moral discourse. Reconciling "thick" and "thin" moral discourse, Walzer supposes that the self is divided into many different selves, each of these "thick" selves identifying itself with different communities, aided by a central but "thin" self regulating the moral dialogues engaged within the divided self.95 Arguably, Walzer’s "encounters" or Durkheim’s "dynamic density" are the creative instruments for the emergence of the many selves; so that the global civil society will be founded on the emerging "thick" moralities of increasingly divided selves, reaching out to see themselves as participants in various communities—communities of ethnicity, of race, of religion, of gender, of trade or vocation, and myriad other possibilities.

Walzer’s vision of the divided self thus contains the resources for the creative reconstruction of sovereignty—or, rather, of multiple forms of association and participation: some organized territorially, reflecting historical commitments of certain groups to specific territories; others organized across existing boundaries, based rather on the functional character of association.96 Some have argued that transnational associations are incapable of spawning solidarity across current state boundaries because they are formed for reasons of self-interest rather than sociability, but the better view seems to be that once formed, organizations generate a kind of solidarity regardless of the initial reasons for their creation.97

Under an instrumentalist view, subsidiarity might well be organized primarily around the existing state structure, either by eliminating states or increasing their number, according to a pragmatic assessment of what level of division of authority most effectively promotes efficient governance. The expansion of the European Union and emergence of other regional free trade areas as precursors to additional consolidation of sovereignty along the lines of the EU model might be one possiblity.98 Similarly, another solution is simply to reduce the size of states or to treat constituent entities of current states as international actors.99 But these approaches seem not to capture the larger purposes of subsidiarity, that of relating the form of governance to its underlying purposes, and seem hopelessly based on an impoverished utilitarian calculus.

A second theory of subsidiarity flows in part from comunitarian ideals,100 in which, like the teachings of the Commission on Global Governance, social duties take precedence over social rights.101 Unfortunately, as appealing as the rhetoric of duties may be, it also flows from corporatist ideology which is susceptible to subordinating individuals and groups to authoritarian state structures.102 Also, subsidiarity’s intellectual history in medieval cosmology suggests the replication of an international distribution of power that may well be too hierarchical to be consistent with the conception of procedural, or participatory, freedom outlined above.103 Indeed, James Kurth has perceived an emerging conflict between the Vatican, whose social teaching based on communitarian notions may well be at odds with the individualist focus of liberal capitalism, and the United States.104 Most significantly, a top-down communitarian (and thus potentially corporatist) conception of subsidiarity could be employed as a straightjacket on human moral standards, an effort that would seems at odds with the enduring cultural diversity in the world and the internal conflict foreseen in the multiple selves Walzer believes emerge within us as we are exposed to these different cultures.

A third theory of subsidiarity might flow directly from these enduring differences and the role they play in individual moral development. James Madison’s theory of federalism—the intellectual force behind the American system of government—exults in the existence of factions, believing that the interplay of factions formed along dimensions of interest ensures government by coalition-building and avoids majority tyranny.105 A democratic politics structured by pervasive factionalism, James Wilson further argued, would generate from the process of participating in a shared endeavor a kind of public affection, tying individuals belonging to different factions to each other and to the broader community.106 Faction, under this approach, both preserves diversity and reinforces community; its emotive engine derives from an empathetic understanding of other factions’ situations and worldview, which in turn might create the basis for the new dimensions to the multiple selves within each self Walzer so elegantly describes.

Under this view, subsidiarity is not so much a top-down demarcation of distribution of powers in the global community, but rather an attempt to organize decision-making in a way that allows each of the selves trapped within the individual self to be expressed. Ethnicity, race, ideology, religion, among other dimensions, would each be able to find expression through a multiplication of transnational interest groups. Again, the Commission of Global Governance hints in this direction by finding in transnational interest groups the potential sources for a global civil society.107 One important unanswered question is whether the groups identified by the Commission can be expanded to include a broader range of the many selves and a deeper share of each of those types of selves, both the elites and the masses.

It is obviously premature to proclaim the existence of a full-fledged global civil society. But it is not too early to begin to think about how it should be structured. It would be unfortunate to find ourselves in a situation where more and more authority for governance is formally transferred to transnational institutions—a process whose pace is accelerating—without assuring that its legitimacy does not rest on pillars of sand and without articulating a clear vision of its consequences for the substance of global governance. In short, as Michael Walzer once argued in a different context, international lawyers must now become moral and political philosophers.108

1. The "nuclear" metaphor employed here suggests an atomistic conception of society as the arrangement of sub-atomic particles. And, like the forces that bind subatomic particles in the atomic theory of matter, the forces that bind individuals together diminish with distance. Thus, the earliest conceptions of the polis are premised on certain numerical and geographical limits. See, e.g., Aristotle, Politics, in The Basic Works of Aristotle 1282-85 (Richard McKeon ed., 1941).

2. For an example of an appealing vision of community life focussing on "neighborhood" conception of civil society, see John Kromkowski, Neighborhoods 1-57 (1995) (on file with the Council for Research in Values and Philosophy), a vision consistent with the Aristotelian vision of the ideal size of the polis. See Aristotle, supra note 2, at 1282-85.

3. The tension between democracy and size was articulated by Machiavelli in a foundational text of modern political theory as well. See Niccolo Machiavelli, The Discourses 113-18 (Bernard Crick ed., 1970).

4. See The Federalist No. 10 (James Madison).

5. See, e.g., Baron de Montesquieu, The Spirit of the Laws (Thomas Nugent trans., 1949).

6. See, e.g., Grenville Clark & Louis B. Sohn, World Peace Through World Law: Two Alternative Plans (3d ed. 1966).

7. It was only with the Kellog-Briand Treaty outlawing war that any limit on the sovereign right of states to use force was ever attempted. See The General Treaty for the Renunciation of War, Aug. 27, 1928, 94 U.N.T.S. 57.

8. See, e.g., Thomas Franck, The Power of Legitimacy Among Nations 181 (1990).

9. See infra text accompanying notes 15-18.

11. See The Commission on Global Governance, Our Global Neighbourhood (1995) [hereinafter Commission Report].

12. See Richard Falk et al., The Grotian Moment, in International Law: A Contemporary Perspective 7 (Richard Falk et al. eds., 1985).

14. An Agenda For Peace: Preventive Diplomacy, Peacemaking and Peace-keeping, U.N. GAOR, 47th Sess., 277th mtg. at ¶ 17, U.N. Doc. A/47/277 (1992).

15. See, e.g., Gerald B. Helman & Steven R. Ratner, Saving Failed States, Foreign Pol’y, Winter 1992/93, at 1, 3 (arguing for UN "conservatorships" of failed states).

16. Montreal Protocol on Substances That Deplete the Ozone Layer, reprinted in Barry E. Carter & Phillip R. Trimble, International Law: Selected Documents and New Developments 690 (1994) (reprinted from UNEP/OzL.Pro.2/3 (29 June 1990)); see also Helsinki Declaration on the Protection of the Ozone Layer, May 2, 1989, 28 I.L.M. 1335 (1989), reprinted in Carter & Trimble, supra, at 689.

18. See Louis Henkin et al., Cases and Materials in International Law 4 (1980); see also J. G. Starke, Introduction to International Law 7-14 (9th ed. 1984) (pointing to the natural law underpinnings of the earliest formulations of international law). But see generally David Kennedy, Primitive Legal Scholarship, 27 Harv. Int’L L.J. 1 (1986) (arguing that Gentili and Grotius’ retention of natural law premises, much like the theologically-grounded natural law reasoning of the Spaniards Vitoria and Suarez, failed to disclose the tensions between law and morality in the international legal order).

19. Henkin et al., supra note 19, at 3; see also R.R. Palmer & Joel Colton, A History of the Modern World 138-42 (5th ed. 1978). As a matter of technical doctrine, states retained the right to engage in war for any reason or no reason. Jus ad bellum, under modern international law, became less a legal than a moral category, at least until the 20th century. See Ian Brownlie, International Law and the Use of Force by States 14-50 (reprint 1981) (1963) (concerning the legality of the use of force as an instrument of policy).

20. As Isaiah Berlin one argued: "[T]he doctrine of absolute sovereign was a tyrannical doctrine in itself. If I wish to preserve my liberty, it is not enough to say that it must not be violated unless someone or other—the absolute ruler, or popular assembly, or the King in Parliament, or the judges, or some combination of authorities, or the laws themselves—for the laws may be oppressive authorizes its violations."). Isaiah Berlin, Two Concepts of Liberty, in Four Essay on Liberty 118, 164 (reprint 1975) (1969).

21. See Hedley Bull, The Anarchical Society: A Study of Order in World Politics 26-31 (2d ed. 1994). Bull points specifically to the absence of "supranational" institutions as a defining feature of the post-Christian international society. Id. at 30.

22. See Richard B. Bilder, An Overview of International Human Rights Law, in Guide to International Human Rights Practices 3 (Hurst Hannum ed., 2d ed. 1992).

23. W. Michael Reisman, Sovereignty and Human Rights in Contemporary International Law, 84 Am. J. Int’l L. 866, 870 (1990).

24. See generally Jochen A. Frowein, Self-Determination As a Limit to Obligations Under International Law, in Modern Law of Self-Determination 211 (Christian Tomuschat ed., 1993); Patrick Thornberry, The Democratic or Internal Aspect of Self-Determination with Some Remarks on Federalism, in Modern Law of Self-Determination, supra, at 101.

25. See, e.g., Thomas Franck, The Democratic Entitlement, 29 U. Rich. L. Rev. 1, 11 (1994) (noting that the norm was initially "addressed" to "the colonial powers: Britain, France, Belgium, Netherlands, Portugal, Spain and the United States").

26. See Commission Report, supra note 12, at 56. The criterion for membership in the Commission, which was headed by Prime Minister Carlsson and former Commonwealth Secretary-General Shridath Rampal of Guyana, seems to have been broad, practical political experience. Its members included former Russian Permanent Representative to the U.N. Yuli Vorontsov, former Ugandan Permanent Representative Olara Otunna, the current U.N. High Commissioner for Refugees Sadako Ogata, the former U.N. Under-Secretary General for Special Political Affairs Brian Urquhart, the former Secretary-General of the 1992 U.N. Conference on the Environment and Development Maurice Strong, and the former President of the World Bank Barber Conable. Id. at 361-66.

27. Recognizing that rights "can only be preserved if they are exercised responsibly and with due respect for the reciprocal rights of others," the Commission argues that "rights need to be joined with responsibilities." Id. at 56.

28. Id. at 49.

29. Id.

30. Yet some may well argue that the teaching in the latest Papal encyclical on social justice, Centesimus Annus, can be grounded on natural law alone without resorting to justification based on divine revelation.

31. James R. Nafziger, The Functions of Religion in the International Legal System, in The Influence of Religion on the Development of International Law 147 (Mark W. Janis ed., 1991).

32. Id. at 153-59.

33. Id. at 160-62.

34. Id. at 159-60.

36. Id. at 162-63 (discussing the U.S.-Iran Hostage Crisis).

37. Commission Report, supra note 12, at 46-47.

38. John Paul II, A Quest to Ensure a Just World Order, Speech to the United Nations General Assembly (Oct. 5, 1995), reprinted in ‘Longing for Freedom . . . Marks Our Time’, Wash. Post, Oct. 6, 1995, at A20 [hereinafter Papal Address].

39. Id.

40. Berlin, supra note 21, at 156-57.

44. Cf. Friedrich Kessler, Contracts of Adhesion—Some Thoughts About on Freedom of Contract 629, 640 (1943) (arguing that freedom of contract—or, more precisely, diminished governmental supervision of private bargains—tends to reinforce existing distributions of power, thus undercutting true freedom of choice).

46. Id.

48. Id. at 840.

49. Id. at 841 n.12.

50. See Commission Report, supra note 12, at 49.

51. See generally Steven J. Burton, Law As Practical Reason, 62 S. Cal. L. Rev. 747 (1989).

53. Id. at 33-35.

56. The Commission Report makes clear, however, that "[t]olerance is indispensable for peaceful relations in any society," and adds that "[many] civil conflicts have shown extreme levels of violence and brutality. Some assertions of particular identities may in part be a reaction against globalization and homogenization, as well as modernization and secularization." Id. at 52. Accordingly, it argues that the "world community should reassert the importance of tolerance and respect for `the other’: respect for other people, other races, other beliefs, other sexual orientations, other cultures." Id. at 53.

57. See, e.g., Harold Koh, Transnational Public Litigation, 100 Yale L.J. 2347 (1991).

58. For the extraordinary role played by the Community of Sant Egidio, a Catholic lay organization, in mediating a resolution of the Mozambican civil war, see Cameron Hume, Ending Mozambique’s War: The Role of Mediation and Good Offices (1994); see also Department of Public Affairs, The United Nations, The U.N. Blue Book Series: United Nations and Mozambique, 1992-1995 (1995) (collecting documents reflecting Sant Egidio’s role).

59. G.A. Res. 181 (II), U.N. Doc. A/64, at 31 (1947), reprinted in The Jerusalem Question and Its Resolution: Selected Documents 6 (Ruth Lapidoth & Moshe Hirsch eds., 1994) [hereinafter Selected Documents].

60. See generally Naomi Chazan, Negotiating the Non-Negotiable: Jerusalem in the Framework of an Israeli-Palestinian Settlement, in Emerging Issues: Occasional Paper Series of the American Academy of Arts and Sciences No. 7 (March 1991) (with commentary by Fouad Moughrabi and Rashid Khalidi).

61. See generally Ruth Lapidoth, Jerusalem and the Peace Process, 28 Isr. L. Rev. 402, 403-05 (1994).

62. Fundamental Agreement Between the Holy See and the State of Israel, Dec. 30, 1993, 33 I.L.M. 154 (1994).

63. See Treaty of Peace Between The State of Israel and the Hashemite Kingdom of Jordan, art. 9(2), Oct. 26, 1994, Isr.-Jordan, 34 I.L.M. 43, 50 (1995) [hereinafter Israel-Jordan Peace Treaty].

64. See Ruth Lapidoth, Jerusalem and the Peace Process, 28 Isr. L. Rev. 402, 428 (1994).

65. Adnan Abu Odeh, Two Capitals in an Undivided Jerusalem, 71 Foreign Affs., Spring 1992, at 183, 187. For a similar approach from the perspective of an academic international lawyer, see Gidon Gottlieb, Israel and the Palestinians, 68 Foreign Affs., Fall 1989, at 109. See generally Gidon Gottlieb, Nation Against State (1993).

66. Abu Odeh, supra note 66, at 187.

67. See Declaration of Principles on Interim Self-Governing Arrangements, 32 I.L.M. 1525 (1994) (entered into force Oct. 13, 1993).

69. Selected Documents, supra note 60, at 322 (reprinting the statute enacted by the Knesset, entitled "Basic Law: Jerusalem, Capital of Israel").

70. See Clovis Maksoud, Peace Process or Puppet Show, Foreign Pol’y, Fall 1995, at 117, 119. Maksoud adds that the PLO has conceded the legality of the Israeli occupation by failing to extract an Israeli concession that it is an occupying power, including with respect to East Jerusalem. Id.

71. Israeli property rights and rights related to the full exercise of those rights, however, were confirmed in a permanent guarantee by Jordan under which Israeli private property rights could not be prejudiced by the termination of the provisions of the Agreement under which the boundary was set. In this way, the lapse of the boundary demarcation would undermine Jordanian claims of sovereignty over any particular territory previously disputed between Jordan and Israel but leave intact, at a minimum, Israeli private property rights. See Israel-Jordan Peace Treaty, supra note 64, arts. 3(1)-(2); id. at Annex 1(B), ¶ 6.

73. As Francesco Capotorti, Special Rapporteur of the U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, observed long ago:

75. Francis Fukuyama, The End of History and the Last Man (1992) (making the neo-Hegelian argument that liberal capitalism has triumphed over all other ideologies and thus ended, at a theoretical level at least, any genuine debate over the proper form of social organizations).

77. See, e.g., Michael Ignatieff, On Civil Society: Why Eastern Europe’s Revolutions Could Succeed, 74 Foreign Affs., Mar./Apr. 1995, at 128 (reviewing Ernest Gellner, Conditions of Liberty: Civil Society Its Rivals (1994)). Ignatieff argues that civil society is "menaced from within by its own inability to satisfy its citizens’ recurrent fantasy of a holistic community." Id. at 133.

78. See James Kurth, The Vatican’s Foreign Policy, 32 Nat’l Interest, Summer 1993, at 40, 41.

80. See George F. McLean, Philosophy and Civil Society: Its Nature, Its Past and Its Future pt. II.B, supra (?) [cross-ref. to this book].

81. See Berlin, supra note 21, at 162-66.

82. But see Terry Nardin, Law, Morality and the Relations of States 15-16 (1983) (articulating a "practical" conception of the ends of international society as the basis for international governance).

83. As Oliver Wendell Holmes once famously argued about the United States Constitution, "[t]he Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics." Lochner v. New York, 198 U.S. 45, 75 (1905).

85. This article advances the argument that a process-based conception of freedom in global civil society requires attention to the problem of global solidarity and subsidiarity as aspects of global governance. It does not join issue with the philosophic debate on the ultimate adequacy of purely process-based principles of justice in a well-ordered society. Compare John Rawls, A Theory of Justice (1971) (advancing an essentially procedural conception of justice) with Michael J. Sandel, Liberalism and the Limits of Justice (1982) (critiquing Rawls’ view and arguing that resort to a substantive conception of the good in inevitable).

87. See J.H.H. Weiler, The Transformation of Europe, 100 Yale L.J. 2403 (1991); Jose Alvarez, The Once and Future Security Council, Washington Q., Spring 1995, at 5.

88. See Carrasco, supra note 44 at 246-61.

90. See Michael Walzer, Thick and Thin: Moral Argument at Home and Abroad 2-4 (1994) [hereinafter Thick and Thin].

91. Id. at 21-39; see also Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality 6-10 (1983).

92. Thick and Thin, supra note 91, at 63-83; see also Michael Walzer, The Moral Standing of States in International Ethics (Charles R. Beitz et al. eds., 1985) (arguing against pro-humanitarian and pro-democratic intervention, subject to certain exceptions, on self-determination grounds).

94. See generally Emile Durkheim, The Division of Labor in Society 257-62 (George Simpson trans., 1964).

95. Thick and Thin, supra note 91, at 85-104.

96. Cf. Gottlieb, supra note 66 (observing that competence can be allocated not only in territorial terms but also functional terms).

97. See Charles Wolf, The Limits of Trust, 41 Nat’l Interest, Fall 1995, at 95, 96 (reviewing and critiquing Frances Fukuyama’s argument in Trust: The Social Virtues and the Creation of Prosperity, supra note 77, that "interest group associations, in contrast to ‘voluntary associations,’ because the former are brought together for reasons of self-interest rather than ‘sociality’," ... do not generate the social trust needed for the effective development of capitalism without large-scale governmental intervention).

99. See, e.g., Peter J. Spiro, The State and Immigration in an Era of Demi-Sovereignties, 35 Va. J. Int’l L. 121, 163, 166 n.182 (1994) (arguing that states should be responsible for immigration law on the theory that states are already conducting their foreign policies and foreign countries perceive them as international actors independent from the United States as a whole).

102. An alternative theory of democracy that would respect pluralism defined as heterogeneity—in the sense of not relying on "overlapping" membership, as does Madisonian federalism—is Arend Lijphart’s theory of consociational democracy. See Arend Lijphart, Democracy in Plural Democracies 18 (1977). However, because his theory requires "coordination" between "elites" of the non-overlapping groups, even Lijphart concedes that his theory can be challenged on account of elite dominance. Id. at 49-50 (attempting to rebut this criticism).

103. See Samual H. Beer, To Make a Nation 27-66 (1993).

105. See The Federalist No. 10, supra note 5.

106. See 1 & 2 The Works of James Wilson (Robert G. McCloskey ed., 1967) (discussed in Beer, supra note 104, at 363-65).