The Future of International Law

When I talk of international law, I am talking about something that is in the process of becoming, as something existing in the sphere of the inevitable, feeling it to exist almost palpably in its pure potential form.  I sense a impending convergence of traditions and a popular effort to reconcile and synthesize the various strains of justice. To me, this is what will salvage the post-modern era from dissolution and collapse. Clearly, we have a long way to go.

We must disabuse ourselves of the notion that international law is a western construct. Indeed, every major culture has within it a vision of universal harmony. Every major culture inevitably invokes the divine and seeks to “tune” human activities accordingly. Law–as stemming from a divine source and addressing the here-and-now–is Universal and the Universe seems to speak through Law. The institutions are overwhelmingly western. But that is merely situational, de facto, ad hoc. International law is in fact a universal constant on the psychic level. It manifests in some form everywhere. I am calling for a development of international law so that it reflects its universal origins.  I do not advocate a rejection of the West, but an enfolding of the West into a global  totality.  What is vital will remain after the hegemons are deflated.  The spirit of the Human Rights Movement will guarantee it.

There is some discomfort, especially in the West, around placing too much emphasis on the sacred sources of law. Our minds tend to rattle back and forth within the secular/sacred dichotomy. We are so absolutely committed to upholding this imagined duality that it is difficult for many of us to imagine a cultural outlook in which the sacred and secular interpenetrate, merge, become one. But an unwillingness to do so could stymie the convergence that is so badly needed. Excessively positivist thinking is certainly not limited to the West. But as we grope toward to a universal apprehension of legal harmony, we must consider that we are, to my mind, on a direct collision course with the Indigenous perspective–one that is fundamentally rooted in the sacred. It will be impossible in a few years to address issues of environmental law without invoking the divine, the sacred, the great spirit in the actual courtroom.  This is not the concept of the sacred as it exists in opposition to the secular.  This is the bedrock of all phenomena.

Those uncomfortable with this will simply have to hang in there. They may find their lives immeasurably improved in the process–although they themselves may not be able fully to account for this in “rational” terms. Even if cynicism only gives way to grudging respect for these “new old ways”, this will be an invaluable process for all. It will literally save the planet. It will enjoin all in harmonies that are universal, cosmic.  I am aware that all this has a very ethereal ring to it. But I believe the methods and consequences propagated by such an outlook will be undeniably concrete.  Developments in environmental law are already bearing this out.

One need only look at the role of the Indigenous perspective in administering the Arctic Council to see a powerful sign of things to come. Or the forward-thinking embrace of crypto-currencies by American Indian groups.   I encourage everyone to read the 2007 UN Declaration on the Rights of Indigenous Peoples. This is a revolutionary document. Not only is it a direct link between Human Rights and the Indigenous Movement, but it amplifies many of the concerns and profound wishes of the 99% Movement.  It could almost serve as a manifesto for the global Occupy Movement!

It is difficult to imagine a more potent alliance than one linking the Indigenous Movement and the 99% Movement.  Hover a little ways back from the Earth, say, at the level of a high-flying satellite and it is a simple matter to see that we are all Indigenous. The Indigenous Movement has been trying to call our attention to this for many years. And as the Human Rights Movement connects with the right to preserve a sacred relationship with the Earth, secularists are going to undergo internal metamorphoses. This will be for the better.  In the 2007 UN Declaration, I believe that all of us can see the image of something deeply wished for.

My mentor, Prof. Yutaka Tajima said something to me in Tokyo last summer that has haunted me and guided subsequent efforts: “The essence of law is unspoken.” It was this beautifully empty statement that freed me, I believe, to entertain the idea that beneath the disparate forms of jurisprudence, we ultimately come together in tacit understanding.  I relate it to the Islamic saying that “Mercy is a higher virtue than justice.”  I relate it to the Confucian admonition to cultivate “li” (the underlying principles of justice) and to eschew “fa” (litigation) where possible.  I relate it to all that is precious and unspoken in the exchange between my sensei and myself.

Just as I am grateful to have seen the living, dynamic effects of justice in California’s central valley, I feel most fortunate to have cultivated somewhat my inchoate understanding in Japan. Sensei has taken me to visit shrines, to hike the Japanese wilderness, to meetings at the Japanese Bar Association, to great eel lunches. Woven through these activities has been an ongoing discussion. Essentially, the problem is: how to bring the world together?

The Indigenous Movement presently offers us an opportunity to reconnect with our own psychic origins and, concurrently, with the origin of life itself. Its momentum is irresistible. Its voice is kind and yet absolute, like the voice of my mentor. It calls for sustainable development. And it insists on language which many will find uncomfortable at first. And yet, international environmental law is predestined to receive its imprint. This much is certain.

The discomfort will be temporary. The human mind has a way of coming around.
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When I speak of international law, I am speaking of the product of an awakening. I speak of it this way because this is the best way, I believe, to actualize it. I speak of it this way because no matter where I am–in Tokyo, Brooklyn, Ulanbaatar, Vienna or Moscow–I hear the Shaman’s drum.

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