Open Access Research Article
OBJECTIVITY VS SUBJECTIVITY: PERCEPTION OF INTERNATIONAL LAW AND JUSTICE IN A GLOBALIZED WORLD
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OBJECTIVITY VS SUBJECTIVITY:
PERCEPTION OF INTERNATIONAL LAW AND JUSTICE IN A GLOBALIZED WORLD
AUTHORED
BY - SUSHMITA DHAR,
BSc. Geography, H.P University, Shimla
LLB, O.P
Jindal Global University, Sonipat, Haryana
LLM
(Corporate & Financial Law & Policy), O.P Jindal Global University,
Sonipat, Haryana
Abstract
It has always been claimed that when
it comes to law, we seek to move towards more and more objectivity, in order to
achieve justice. This argument, however, is not always true in every case. When
we talk about international law in particular, this argument does not suffice.
The concept of perception of international law and justice in a more globalized
world has been discussed here. Justice, as per John Rawls’s theory and Amartya
Sen have been mentioned briefly. The arguments have revolved around the issue
as to whether their universal perception or a subjective perception is more
likely in a globalized world. Outi Korhonen’s argument of making scope for
subjective interpretation in international law, along with the already existing
legal objectivism, has been put forth here. The aim is to clarify as to how we
can proceed towards the objective as well as subjective standards of
international law and justice. Through the discussions of certain concepts such
as secularism, CSR and so on, internationally, the approach and perception
involving both the universal or objective standard and subjective standard is
shown. It is shown that the conception that international law is universal or
objective and applies everywhere in order to achieve justice, which is also universal,
is not necessarily true.
Introduction
Objectivity and subjectivity are two
important criteria when it comes to determining justice in the realm of
international law. These two criteria are nothing but methods of interpretation
of law. The laws are interpreted either objectively or subjectively, in order
to achieve and maximize the scope of justice in international law. Although, it
is also done with respect to other domestic and municipal laws as well, but
methods of interpretation are extremely important and crucial for international
law, with the increasing globalization. However, even more important issue that
arises is that of the interpretation of justice. What may seem like justice for
one state may or may not be justice for another state. But should justice be
state centric or individual centric? Whether there should be an objective or
subjective standard for justice as well remains to be a significant question.
Thus, it is important to understand, whether justice itself is a concept having
universal meaning or not.
Over the years, right from the
ancient times to the medieval times, modern times and now the recent times,
justice has remained to be the most important concept, be it in the social,
political, legal or economic spheres. After the French revolution in 1789, most
of the people came to believe that justice is liberty, equality and fraternity.
Even with the changing times that have led to several alterations in the nature
and scope of justice, the true nature and essence of justice could never get
altered. This can be seen from the work of one of the most important scholars,
John Rawls. According to Rawls, there are two principles of justice, first
concerns the political institutions and the second concerns the social and
economic institutions. The first principle implied that everyone must have same
basic liberties and the second principle implied that in order to achieve
justice one must try to reduce inequalities as much as possible and seek
equality, i.e., “fair equality of opportunity”, and also try to improve the
conditions of “least advantaged” members of the society. However, he gave
priority to the first principle over the second and further gave priority to
the first part of the second principle over the second part. Still, he laid
emphasis on the significance of both the principles required together to
achieve justice. Thus, his work showed us that the true nature and essence of
justice, being liberty and equality could never get altered. However, even this
theory was subjected to criticisms by none other than another great pioneer,
Amartya Sen. According to Sen, justice as a concept is not that simple and
universal as Rawls made it seem. He was uncertain, whether Rawls theory could
be objective, universal and applied everywhere. His main focus was on
implementation and application of laws in order to achieve justice, rather than
just dissecting the nature of justice.
Therefore, from the above discussions
by the scholars with respect to justice, the issues that arise before us are,
whether the international laws need to be made and interpreted more
subjectively rather than objectively, in order to achieve justice in the
globalizing world, and whether this justice itself needs to be understood and
interpreted in a more subjective manner rather than objective manner in the
globalizing world.
Objectivism vs Subjectivism in the
Perception of International Law and Justice in a Globalizing World
Over the years, many supporters of
objective standards in international law, have argued that subjectivity will
deprive law of its legality and its legitimacy through involvement of politics
in the subjective standards. However, what they are not realizing is that
application of international law requires relative as well as subjective assessment.
Further, what they are not realizing is that if we just follow the old and
contemporary method of approach towards international law, which is objective
in nature, then Prof. BS Chimni’s third world approaches to international law
and Hilary Charlesworth’s feminist approaches to international law, will become
completely nullified and pointless. Such approaches are crucial because they
involve subjective perceptions in international law, and the subjects involved
in their approaches are people from the developing world and women around the
globe. Objectivists further fear that bringing subjective approaches may
totally eliminate the system of international law. However, that is not the
case, because with the increasing globalization, the need for international
law, which is accommodating enough to involve both legal objectivism and
subjectivism has escalated.
In order to understand the system of
objectivities and subjectivities surrounding international law, we can look at
certain examples. For instance, taking secularism as a concept, if we talk
about its general meaning it requires separation of religion from state and
politics. However, its interpretation and the way it gets applied in various
nation-states is fully laced with politics and subjective views with regards to
it. By taking the example of few nation-states, we would understand this
subjective viewpoint better. In case of Turkey, being a predominantly Muslim
country having about 99 percent Muslim population, it has chosen to be secular.
There, Muslim headscarves are banned from all public offices and universities.
An important court case had ensued in 2005, when a young medical student, Layla
Sahin had challenged the headscarf ban and took the case to the European Court
of Human Rights (ECHR). She had claimed that this ban violated her freedom of
religion under European Convention on Human Rights, but the court had rejected
her claim and ruled in favour of the secular Turkish government.
However, when we look at another
secular country such as India, wherein majority of the population is of Hindus
(about 85 percent), whereas Muslims are in minority, such bans would never
suffice, because the secularism followed in India is different from that of
Turkey. Thus, if ECHR or any other international court or organization were to
judge for India, in the manner as they did in the Turkish case, then it would
not have been deemed just and fair by the Indian standards of secularism.
Another case to be considered is that of France, which is a western secular
country. In 2004, the French Government had banned wearing of ostentatious
religious symbols in state schools. It was inclusive of religious symbols such
as headscarves, burqa, niqab, Jewish yarmulkes, turbans and so on. The
interpretation and application of French way of secularism deems it just,
because they do not believe in diversity and multiculturalism, but rather
believe in assimilation of everyone into French. However, that may not be the
case for other states. If such bans were to be imposed in India, then it would
be the violation of form of secularism followed in India, and it would not
ensue justice. In India, secularism has been envisaged in the preamble of the
Constitution, thus its violation would be deemed unconstitutional. However, if
we look at the objective meaning of secularism, then one may argue that no
violation would happen. However, that is not the case and its subjective
understanding, as per the situation in India is followed. Therefore, from the
cases of Turkey, India and France, with respect to secularism, in spite of
having a universal and objective meaning, it is interpreted and applied
subjectively in these nation-states and even the interpretation of justice
(i.e., political justice) is subjective for this concept.
Another concept that can be analyzed
is that of Corporate Social Responsibility (CSR), internationally. According to
United Nations Industrial Development Organization (UNIDO), CSR is the
responsibility of the corporates to include social and environmental concerns
along with their business operations. Further, according to World Bank, “taking
into account the economic, social and environmental impacts in the way a
business operates, CSR actions are voluntary actions that business can take,
over and above compliance with minimum legal requirements.” Thus, from the
above meanings of CSR, it is clear that the international organizations such as
UNIDO and World Bank advocate for a universal and objective interpretation of
CSR, which is that it is “voluntary” in nature. However, when we do comparative
study of certain nation-states, we find out that such is not the case. There is
a stark difference with respect to interpretation and application of CSR,
especially in various developing and developed nation-states.
We have got states like India and
China where CSR is mandatory and legal and not just voluntary. In India,
Section 135 of Companies Act, 2013 read along with Companies (Corporate Social
Responsibility Policy) Rules, 2014 and Schedule VII of the Act, shows the
mandatory nature of CSR, with the Companies being mandated by the state
(government) to do the CSR spending in accordance with the guidelines, subject
to the provisions. In case of China, where companies are state-owned, mandates
are issued by the Government to promote CSR, as a way to have a harmonious
society and also improve China’s international image. On the other hand, there
are countries like Germany, in Europe, that still want to keep the voluntary
nature of CSR intact, by allowing lesser intervention by the Government. In the
context of UK, few Prime Ministers, from both the Labour as well as the
Conservative parties, have deployed “soft laws” with respect to CSR when
required, even though mostly it has remained voluntary. However, recently in
some European countries, the nature and scope of CSR has started shifting more
and more towards mandatory. One such example is that of Netherlands where it is
claimed that the government, apart from the responsibilities of businesses,
also has an important role to play, by setting frameworks for CSR. Thus, by
altering the voluntary nature of CSR into mandatory, they seek to achieve their
desired results.
Therefore, from the cases above it is
clear that subjectivity is dominant here, when it comes to interpretation and
application of the laws with respect to CSR. If the objective standards for CSR
were followed everywhere, then many of the nations would have struggled to
achieve their targets of socio-economic benefits for their citizens through CSR.
Thus, if we discuss even further with
respect to the international refugee laws or international human rights law as
envisaged by UN Declaration of Human Rights, then we may end up finding even
further subjectivism with respect to the interpretation and application of
those laws and justice. It is extremely difficult to set objective standards
when it comes to such kind of issues, as they are extremely political and at
times controversial as well. Therefore, subjectivity is imperative within the
regime of international law and justice. With more and more globalization
around the world, the need for newer understanding of justice has been
required. Hence, the subjective understanding of justice in a world full of
diverse subjects living in diverse states, became inevitable.
Conclusion
One thing that we need to understand
is that objectivity in science is the most important element. However, that is
not necessarily the case in legal justice. Before deciding on whether both law
and justice in international law need to become more subjective and need to be
interpreted subjectively, one must firstly understand who the subjects of
international law are. The subjects of international law in the true sense are
the individuals living in the states. They are the subjects and not objects of
international law. All of them, belonging to different states and having
diverse backgrounds, cannot be treated the same or objective. With the advent
and now further increase in globalization, subjects of international law
belonging to different states, have started acknowledging their diversities
more and more. Thus, these diverse subjects of international law, understand
the concepts of law and justice differently. Hence, it becomes extremely
difficult to follow a universal set of objective laws and interpret them
universally and objectively. However, that does not mean that there should
never be a set of objective and universal rules along with objective and
universal interpretation of law and justice, at all. In fact, if certain
objective standards are not present in the realm of international law, then it
may lead to anarchy and chaos amongst the subjects of the states. Thus,
globalization not only helps us understand the value of subjectivity required
for justice, but it also helps us realize the value and importance of
objectivity which is needed as well. Law being the means and justice being the
end, if subjective means are more likely to achieve an end in international,
then they should not completely be rejected. However, it should also be
realized that it is the objective base, around which different kinds of
subjective interpretations get evolved. Thus, making room for subjectivity and
not compromising with the objectivity, should be the key for international law.
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Article Information
OBJECTIVITY VS SUBJECTIVITY: PERCEPTION OF INTERNATIONAL LAW AND JUSTICE IN A GLOBALIZED WORLD
Authors: SUSHMITA DHAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/05/06
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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