The Right to be Subject to International Law
Abstract:In this paper I look for guidance from Magna Carta for disputes in contemporary international law. Magna Carta was slightly amended in 1225 to include, after “desseised,” the words “of any free tenement or of his liberties or free customs.” When added to the idea of outlawry already in the original version of Magna Carta, this was understood to mean also the right not to be deprived of citizenship rights (see Thompson, 1948:68). As we move slowly toward an international legal order, one of the key rights will be something like the right to be a subject of international law, and the right not to be forced to lose the protection of one's rights as a “citizen of the world.” Related to these rights is the idea, also from Magna Carta, that something like trial by jury of one's peers is crucial for the protection of all of one's other rights. I am not proposing that the category of “world citizen” is yet established in practice today, but only that as we move slowly toward such a global order there are various procedural rights that will need to be secured to guarantee to all persons the equal protection of international law. The positive right to be subject to international law, or the negative right not to be excluded from the protection of international law, is of the highest priority for the progressive development of something like global citizenship rights that correspond to human rights.
The idea explored in this paper, is for international courts or other institutions to step in and offer relief when detainees have been allowed to slip between the cracks of extant legal systems or rights-enforcement regimes. In addition, I would also argue that something like trial by jury in criminal matters should be an acknowledged international right, which can be overridden only in rare cases. And this is probably the most controversial of the various proposals to adopt Magna Carta's procedural rights. For there have not yet been major international instruments that have recognized trial by jury as a requirement of criminal proceedings. This was one of the lynchpins of the evolving Magna Carta doctrine. The right to a jury by one's peers is crucial for justice, or so it was thought over time as procedural justice developed in England in the centuries after Magna Carta. Yet today there are no international jury trials, so this right is a long way from being recognized and enforced, although the recently decided United States Supreme Court decision in Boumediene seems to be on the road to recognizing this right.
Document Type: Research Article
Publication date: January 1, 2010
More about this publication?
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One of the main objections raised against world governance is not that it is impractical, but that it is unnecessary and even undesirable. There is a fear that world government would be or become tyrannical. German philosopher Immanuel Kant devised a project of "perpetual peace," but he was against a world state, advocating instead a kind of confederation of the states in the world. Finally, if a world government is indeed formed, how far should the instruments and tools of such a body reach? These and other issues have been explored in this book. Covering a wide range of disciplines - from philosophy to jurisprudence, ethics, and social science - the book explores how theorists have reflected upon the necessary components of an effective global order.
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