Routledge Handbook of International Law

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Routledge Handbook of International Law provides a definitive global survey of the interaction of international politics and international law. Each chapter is written by a leading expert and provides a state-of-the-art overview of the most significant areas within the field. This highly topical collection of specially commissioned papers from both established authorities and rising stars is split into four key sections:

The Nature of International Law including the interaction between the disciplines of international law and international relations Evolution of International Law progressing from the ancient world to present day Law and Power in International Society discussing topical issues such as the war in Iraq and the international criminal court Key Issues in International Law including international refugee law, indigenous rights, intellectual property, trade and the challenges presented by ‘new terrorism’

A comprehensive survey of the state of the discipline, Routledge Handbook of International Law is an essential work of reference for scholars and practitioners of international law.

David Armstrong is Emeritus Professor of International Relations at the University of Exeter. His research interests include the historical evolution of international legal norms and institutions. He is the author and co-author of a number of books and was formerly editor of the Review of International Studies.

Contributors: David Armstrong, Mashood Baderin, Robert J. Beck, David J. Bederman, Andrea Bianchi, Allen Buchanan, Anthony Carty, Marie-Claire Cordonier Segger, Anthony D’Amato, Allison Danner, Karen Engle, Markus W. Gehring, Edward Keene, Martti Koskenniemi, Friedrich Kratochwil, Hélène Lambert, Ikechi Mgbeoji, John F. Murphy, Amrita Narkilar, Liliana Obregón, Obiora Chinedu Okafor, Andreas Paulus, Russell Powell, Wayne Sandholtz, William A. Schabas, Shirley V. Scott, Dinah Shelton, Beth Simmons, Gerry Simpson and Marc Weller. 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page ii 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page iii

Routledge Handbook of International Law

Edited by David Armstrong EDITORIAL BOARD Jutta Brunée Michael Byers John H. Jackson David Kennedy 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page iv

First published 2009 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 270 Madison Avenue, New York, NY 10016 Routledge is an imprint of the Taylor & Francis Group, an informa business This edition published in the Taylor & Francis e-Library, 2008. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” © 2009 Selection and editorial matter, David Armstrong; individual contributors, their contributions All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Library of Congress Cataloging-in-Publication Data Routledge handbook of international law / edited by David Armstrong. p. cm. ISBN 978-0-415-41876-8 – ISBN 978-0-203-88462-1 1. International law–Political aspects. 2. International law. I. Armstrong, J. D. ( James David), 1945– KZ1250.R68 2008 341–dc22 2008027374

ISBN 0-203-88462-0 Master e-book ISBN

ISBN 13: 978-0-415-41876-8 (hbk) ISBN 13: 978-0-203-88462-1 (ebk)

ISBN 10: 0-415-41876-3 (hbk) ISBN 10: 0-203-88462-0 (ebk) 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page v

Contents

Author biographical sketches viii Preface xiv List of abbreviations xv Legal cases xxii Reports, legislation and treaties xxvi

Introduction David Armstrong 1

Section I The nature of international law 11

1 International law and international relations scholarship 13 Robert J. Beck

2 International law and international community 44 Andreas Paulus

3 Legal theory and international law 55 Friedrich Kratochwil

4 Soft law 68 Dinah Shelton

5 The practice of international law 81 Anthony Carty

6 International law as a unitary system 101 Anthony D’Amato v 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page vi

CONTENTS

Section II Evolution of international law 113

7 International law in the ancient world 115 David J. Bederman

8 The age of Grotius 126 Edward Keene

9 The legacy of the nineteenth century 141 Martti Koskenniemi

10 Latin American international law 154 Liliana Obregón

11 Religion and international law: an analytical survey of the relationship 165 Mashood Baderin

12 The struggle for an international constitutional order 179 Marc Weller

Section III Law and power in international society 195

13 Law and force in the twenty-ﬁrst century 197 Gerry Simpson

14 The nature of US engagement with international law: making sense of apparent inconsistencies 210 Shirley Scott

15 The Iraq war and international law 222 Wayne Sandholtz

16 The International Criminal Court 239 Beth Simmons and Allison Danner

Section IV Key issues in international law 247

17 Fidelity to constitutional democracy and to the rule of international law 249 Allen Buchanan and Russell Powell

18 International crimes 268 William A. Schabas

19 Challenges of the “new terrorism” 281 John F. Murphy

20 Law and legitimacy: the World Trade Organization 294 Amrita Narlikar vi 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page vii

CONTENTS

21 Attainments, eclipses and disciplinary renewal in international human rights law: a critical overview 303 Obiora Chinedu Okafor

22 Colonial origins of intellectual property regimes in African states 316 Ikechi Mgbeoji

23 Indigenous rights claims in international law: self-determination, culture and development 331 Karen Engle

24 International refugee law: dominant and emerging approaches 344 Hélène Lambert

25 Sustainable development in international law 355 Marie-Claire Cordonier Segger

26 WTO law and sustainable development 375 Markus W. Gehring

27 Looking ahead: international law’s main challenges 392 Andrea Bianchi

Bibliography 410 Index 452

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Author biographical sketches

David Armstrong is Emeritus Professor of International Relations at the University of Exeter. He has published numerous books and articles on many aspects of international relations, including Chinese foreign policy, international organization and revolutionary states. He is a former editor of the Review of International Studies. For the last 10 years he has focused on international law and his most recent book is International Law and International Relations (co-authored with Theo Farrell and Hélène Lambert: Cambridge University Press 2007).

Mashood Baderin is Professor of Law at the School of Law of the School of Oriental and African Studies (SOAS), University of London. He is also a barrister and solicitor of the Supreme Court of Nigeria. He is founding co-editor of the Muslim World Journal of Human Rights. He researches in the areas of Islamic law, international law, international and comparative human rights law, human rights and Islamic law, with particular interest in the interaction between international law, human rights law and Islamic law in Muslim states. His most recent book is International Law and Islamic Law (Ashgate 2008).

Robert J. Beck is Associate Professor of Political Science at the University of Wisconsin – Milwaukee where he teaches international law. He is author of The Grenada Invasion (1993), co-author of International Law and the Use of Force (1993) and co-editor of International Rules (1996) and International Law and the Rise of Nations (2002) and author of numerous articles in journals including International Security, Review of International Studies, Virginia Journal of International Law and the International Journal of Refugee Law.

David J. Bederman is the K.H. Gyr Professor of Private International Law in the Emory University School of Law, Atlanta, Georgia. He holds the Diploma of the Hague Academy of International Law and has also served as a legal advisor at the Iran–US Claims Tribunal in The Hague. After a stint in private practice, he accepted his current teaching appointment at Emory. He is a member of the board of editors of many international law journals, including the American Journal of International Law. His contribution is based on portions of the author’s previous volume, International Law in Antiquity (Cambridge University Press 2001). He is also the author of The Spirit of International Law (University of Georgia Press 2002); The Classical viii 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page ix

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Foundations of the American Constitution (Cambridge University Press 2008) and Globalization and International Law (Palgrave-Macmillan 2008).

Andrea Bianchi is Professor of Public International Law at the Graduate Institute of International Studies in Geneva and the Catholic University in Milan. His publications range from international human rights law, international economic law, the law of jurisdiction and jurisdictional immunities to international environmental law, state responsibility and the law of treaties. He is currently working on international human rights before municipal courts, the status of the precautionary principle in international and European law and the enforcement of international law norms against terrorism. He edited Enforcing International Law Norms against Terrorism (Hart 2004).

Allen Buchanan is James B. Duke Professor of Philosophy and Investigator, Institute for Genome Sciences and Policy, Duke University. Apart from being the author of many books and articles he was official Staff Philosopher for the President’s Commission for the Study of Ethical Problems in Medicine and Behavioral and Biomedical Research, 1982, Consultant to the Office of Technology Assessment of the US Congress, Staff Consultant to the President’s Advisory Committee on Human Radiation Experiments, 1994, Consultant to the Transi- tional Government of Ethiopia, Consultant to the European High Commissioner on National Minorities in the Hague and was commissioned by Canadian Government, Office of the Privy Council, to write a commentary on the Canadian Supreme Court Reference Ruling on the Possible Secession of Quebec, 1997. He served on the Advisory Council for the National Human Genome Research Institute, 1997–2000.

Anthony Carty is Professor of Public Law at the University of Aberdeen. He has published various books such as The Decay of International Law (Manchester University Press 1986), Post- Modern Law (Edinburgh University Press 1990), Was Ireland Conquered? (Pluto Press 1996) and Philosophy of International Law (Edinburgh University Press 2007). His interests and articles span history, philosophy, politics, theology and law. He has been a Visiting Professor, inter alia, at the University of Tokyo, Paris I and II, the Free University of Berlin and the Autonomous University of Madrid.

Marie-Claire Cordonier Segger is Director of the Centre for International Sustainable Development Law (CISDL), a Fellow of the Lauterpacht Centre for International Law at Cambridge University and directs international affairs at the Canadian Ministry of Natural Resources. She serves on the World Future Council and other bodies working on sustainable development issues. She has authored or edited 12 volumes and numerous articles on sustainable development.

Anthony D’Amato is the Leighton Professor of Law at Northwestern University School of Law, where he teaches courses in international law, international human rights, analytic jurisprudence and justice. He is admitted to practice before the US Supreme Court, the US Tax Court and several US Circuit Courts of Appeal and is a member of the New York Bar. Professor D’Amato was the ﬁrst American lawyer to argue (and win) a case before the European Court of Human Rights in Strasbourg and he has litigated a number of human rights cases around the world. He was lead counsel at the International Criminal Tribunal for the former Yugoslavia. He is the author of over 20 books and over 110 articles. ix 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page x

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Allison Danner is Professor of Law at the Vanderbilt University Law School. She is the author of numerous articles and papers on international criminal law and is currently completing a major empirical study on the International Criminal Court with Beth Simmons. She has served on the Executive Council of the American Society of International Law.

Karen Engle is Cecil D. Redford Professor in Law and Director of the Bernard and Audre Rapoport Center for Human Rights and Justice at the University of Texas School of Law. Her primary areas of scholarship are women’s human rights, humanitarian law and indigenous and Afro-descendant rights in Latin America, on all of which subjects she has published widely in major journals. She has been named a Fulbright Senior Specialist.

Markus W. Gehring is Lecturer in International and European Law at the University of Cambridge in the Centre of International Studies and Fellow in Law at Robinson College. He practised European competition and international trade law with Cleary Gottlieb in their Brussels ofﬁce and is a member of the Frankfurt-am-Main Bar, lead Counsel for Sustainable International Trade, Investment and Competition Law with the Centre of International Sustainable Development Law (CISDL) and a member of the Sustainable Development Law Committee of the International Law Association (ILA). His recent books, with Marie-Claire Cordonier Segger, include Sustainable Development in World Trade Law (Kluwer Law International 2005) and World Trade Law in Practice (Globe Publishing 2007).

Edward Keene is Associate Professor at the Sam Nunn School of International Affairs at Georgia Tech. He is the author of Beyond the Anarchical Society: Grotius, Colonialism and Order in World Politics (Cambridge University Press 2002) and International Political Thought: A Historical Introduction (Polity Press 2005), as well as several articles and book chapters on international law and international relations theory.

Martti Koskenniemi is Professor of International Law at the University of Helsinki and Global Professor of Law at New York University. He is a former member of the International Law Commission. He served in the Finnish Diplomatic Service, lastly as Director of the Division of International Law. He was Finland’s counsel in the International Court of Justice in the Passage through the Great Belt Case (Finland v. Denmark) (1991–2). He has also served as a judge in the administrative tribunal of the Asian Development Bank. His major books are The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge University Press 2001) and From Apology to Utopia: The Structure of International Legal Argument (Cambridge University Press 1989, reissued 2005).

Friedrich Kratochwil taught at Maryland, Princeton, Columbia, Delaware and Pennsylvania, before returning (in 1995) to Germany and taking the chair in international politics at the European University Institute in Florence (2002). He has published widely on international relations, social theory, international organization and international law in US and European journals. He is a former editor of the European Journal of International Relations. His latest book (edited with Ed Mansﬁeld) is International Organization and Global Governance (Pearson 2005).

Hélène Lambert is Reader in Law in the Postgraduate Legal Studies Department at the University of Westminster. She is author of numerous articles on the protection of refugees in human rights and refugee law. Her recent books include The Position of Aliens in relation to the Euro- pean Convention on Human Rights (Council of Europe 2006) and, co-authored with David x 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page xi

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Armstrong and Theo Farrell, International Law and International Relations (Cambridge Uni- versity Press 2007). She is currently completing an edited volume with Guy S. Goodwin-Gill on the Limits of Transnational Law: Refugee Law, Policy Harmonization and Judicial Dialogue in the European Union, based on a 2-year project funded by the Nufﬁeld Foundation and the British Academy.

Ikechi Mgbeoji is Associate Professor at Osgoode Hall Law School of York University, Toronto, Canada. Educated in Nigeria, Canada and Germany, his main research and teaching interests are in the areas of international, comparative and transnational law, international intellectual property law and environmental law. His recent books include Collective Insecurity (University of British Columbia Press 2003) and Global Biopiracy (University of British Columbia Press 2006).

John F. Murphy is Professor of Law, Villanova University School of Law. His career has included a year in India on a Ford Foundation Fellowship, private practice in New York City and Washington, DC, and service as an attorney/adviser in the Ofﬁce of the Assistant Legal Adviser in the US Department of State. He is the author of many publications on international law and relations, most recently The United States and the Rule of Law in International Affairs (Cambridge University Press 2004). His casebook (with Alan C. Swan) The Regulation of International Business and Economic Relations (2nd edn, Lexis Publishing 1999) was awarded a Certiﬁcate of Merit by the American Society of International Law in 1992. He is currently the American Bar Association’s Alternate Observer at the US Mission to the United Nations.

Amrita Narlikar is University Lecturer in International Relations at the Centre of International Studies, University of Cambridge, and Ofﬁcial Fellow-Elect of Darwin College, Cambridge. She is also Senior Research Associate at the Centre for International Studies, Univer- sity of Oxford, and Senior Adjunct Professor at the Delhi-based think-tank, Research and Information System for Developing countries. She is a member of the Warwick Commission on the Future of the Multilateral Trading System, and Editor-in-Chief of the book series, Studies in International Institutional Dynamics, with Martinus Nijhoff/Brill. Her single-authored books include International Trade and Developing Countries: Bargaining coalitions in the GATT and WTO (Routledge 2003, paperback 2005); and The World Trade Organization: A Very Short Introduction (Oxford University Press 2005). She is currently completing two new books, New Powers: How to become one and how to manage them, under contract with Hurst and Columbia University Press, and a collection of reprints and new powers, Bargaining with the Strong, to be published with World Scientiﬁc Publishers.

Liliana Obregón is Associate Professor and Director of the International Law Program at the University of Los Andes in Bogotá, Colombia. She holds a doctoral degree (SJD) from Harvard Law School, an MA from the School of Advanced International Studies of the Johns Hopkins University and a law degree from Los Andes and has published extensively on the work of Latin American writers of international law.

Obiora Chinedu Okafor is an Associate Professor at the Osgoode Hall Law School at York University, Toronto, Canada. He recently served as a Canada–US Fulbright Scholar at the Massachusetts Institute of Technology and has previously served as an SSRC–MacArthur Foundation Fellow at Harvard Law School’s Human Rights Program. He was recently an expert panelist for the United Nations Human Rights Council’s Working Group on People of African Descent. xi 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page xii

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Andreas Paulus is Professor of Public and International Law and director of the Institute of International and European Law at the Georg-August-University, Göttingen. His publications deal with international legal theory, the law of the United Nations, international adjudication, as well as international criminal law. He also served as counsel of the Federal Republic of Ger- many in the LaGrand case (Germany v. United States) and adviser to the German team in the Certain Property (Liechtenstein v. Germany) case before the International Court of Justice.

Russell Powell is Greenwall Postdoctoral Fellow and Senior Research Scholar at the Kennedy Institute of Ethics, Georgetown University.

Wayne Sandholtz is Professor of Political Science at the University of California, Irvine. He is the author, most recently, of Prohibiting Plunder: How Norms Change (Oxford University Press 2007) and co-author, with Kendall Stiles, of International Norms and Cycles of Change (Oxford University Press, forthcoming). Current research includes projects on the evolution of international norms, international courts and tribunals and the comparative study of corruption. His past work has focused on the politics of European integration, including work on integration theory, high-technology cooperation, telecommunications and monetary union.

William A. Schabas is director of the Irish Centre for Human Rights at the National University of Ireland, Galway, where he also holds the professorship in human rights law. He is also a Global Legal Scholar at the University of Warwick School of Law, a professor at Queen’s University Belfast, professeur associé at the Université du Québec à Montréal and a “door tenant” at 9 Bedford Row, London. He is the author of 18 monographs and more than 200 articles dealing with international human rights law and international criminal law. He was a member of the Sierra Leone Truth and Reconciliation Commission. He serves as one of ﬁve trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights. He is an Ofﬁcer of the Order of Canada and a Member of the Royal Irish Academy and has an LLD honoris causa from Dalhousie University, Halifax.

Shirley V. Scott is Associate Professor at the School of Social Sciences, University of New South Wales. She has published numerous articles in leading journals on the place of international law in international relations. Recent books include The Political Interpretation of Multilateral Treaties (Martinus Nijhoff 2004) and International Law in World Politics (Lynne Rienner 2004).

Dinah Shelton holds the Manatt/Ahn Professorship in International Law at George Washington University. She is the author of three prize-winning books: Protecting Human Rights in the Americas (winner of the 1983 Inter-American Bar Association Book Prize, co-authored with Thomas Buergenthal) (Editorial Juricentro 1983), Remedies in International Human Rights Law (awarded the 2000 Certiﬁcate of Merit, American Society of International Law) (Oxford University Press 1999) and the three-volume Encyclopedia of Genocide and Crimes against Humanity (Best Reference Book 2006, as cited by the New York Public Library) (Macmillan 2005). She has also authored many other articles and books on international law, human rights law and international environmental law. She serves on the boards of many human rights and environmental organizations. From 1987 to 1989 she was the director of the Ofﬁce of Staff Attorneys at the US Court of Appeals for the Ninth Circuit. She has also served as a legal consultant to the United Nations Environment Programme, UNITAR, World Health Organization, European Union, Council of Europe and Organization of American States. She was awarded the 2006 Elisabeth Haub Prize for Environmental Law. xii 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page xiii

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Beth Simmons is Clarence Dillon Professor of International Affairs at Harvard University. Her book, Who Adjusts? Domestic Sources of Foreign Economic Policy During the Interwar Years, 1924–1939 (Princeton University Press 1994), was recognized by the American Political Science Association in 1995 as the best book published in 1994 in government, politics or international relations. She has worked at the International Monetary Fund, has spent a year as a senior fellow at the United States Institute of Peace (1996–7), and a year in residence at the Center for Advanced Study in the Behavioral Sciences at Stanford. She currently serves as Director of the Weatherhead Center for International Affairs at Harvard and is ﬁnishing a book on the effects of international law on human rights practices.

Gerry Simpson is a Professor of International Law at the London School of Economics and holds a Chair in Law at the University of Melbourne Law School. Recent books include Law, War and Crime: War Crimes Trials and the Reinvention of International Law (Polity Press 2007) and Great Powers and Outlaw States (Cambridge University Press 2004). He has worked for several NGOs and was a member of the Australian Government Delegation to the Rome Diplomatic Conference for the Negotiation of the Statute for the International Criminal Court.

Marc Weller is Reader in International Law and Relations at the University of Cambridge, Director of the Centre for International Constitutional Studies at Hughes Hall, Cambridge, a Fellow of the Lauterpacht Centre for International Law and Director of the European Centre for Minority Issues. He has advised governments and international organizations on matters of international law and participated in a series of international peace processes. His latest publications include Universal Minority Rights (Open University Press 2007) and (with Barbara Metzger), Settling Self-Determination Conﬂicts (Nijhoff 2008).

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Preface

The Handbook of International Law brings together contributions from authors from all ﬁve continents, including some of the most eminent international lawyers, as well as specialists in international relations, political science and philosophy. Our authors were invited to set out what they saw as the key issues involved in the many distinct aspects of international law that are considered here at what is a particularly fascinating point in the discipline’s long evolution, with enormous challenges and opportunities coexisting in roughly equal amounts. A great many people have assisted, inspired, enthused (and tolerated) our authors. We would particularly like to mention the generous support of the EU Network of Excellence on Globalisation and Regional Governance (GARNET) for the task of editing this work. Maggie Armstrong and Jocelyn Vaughan have provided absolutely invaluable research and editing assistance. We are also grateful to Craig Fowlie, Nicola Parkin and Antonia Edwards at Taylor & Francis for responding to our occasionally anxious queries. Our authors would also like the following to receive special mention for their research assistance, comments, feedback and many other kinds of help: Annette Bazira-Okafor, Benjamin Bohris, Professor B.S. Chimni, the CISDL research group, William Currie, Kristina Davies, John S. Dufﬁeld, Theo Farrell, Richard Friman, Carlos Iván Fuentes, Evan Haas, J. Ryan Hall, Professor J.C. Hathaway, Mary Beth Hickcox-Howard, Katherine Nobbs, Mbabazi Okafor, Ojiako Okafor, Matthew Wooten and audiences at American University-Cairo, the Latin American Studies Association meeting in Montreal and law schools at the Universidad de Los Andes (Bogotá), the University of Texas and Harvard University.

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List of abbreviations

AA American anthropologist ADCL Anuario de Derecho Constitucional Latinoamericano AHR American Historical Review AIPLAQJ American Intellectual Property Law Association Quarterly Journal AJCL American Journal of Comparative Law AJIA Australian Journal of International Affairs AJICL Arizona Journal of International and Comparative Law AJIL American Journal of International Law AJP American Journal of Philology ALR Akron Law Review AMR Academy of Management Review ANAAPSS Annals of American Academy of Political and Social Science APSR American Political Science Review ARIPO African Regional Industrial Property Organization ARLSS Annual Review of Law and Social Science ASIL American Society of International Law ASILP American Society of International Law Proceedings AUILR American University International Law Review AUJILP American University Journal of International Law and Policy AULR American University Law Review AV Archiv des Völkerrecht B Boundary 2: An International Journal of Literature and Culture BCEALR British Columbia Environmental Affairs Law Review BCICLR Boston College International and Comparative Law Review BELJ Buffalo Environmental Law Journal BJIL Brooklyn Journal of International Law BJPIR British Journal of Politics and International Relations BUILJ Boston University International Law Journal BYIL British Yearbook of International Law BYULR Brigham Young University Law Review xv 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page xvi

LIST OF ABBREVIATIONS

CBD Convention on Biological Diversity CC constitutional comment CC cultural critique CERES Coalition for Environmentally Responsive Economics ChJIL Chinese Journal of International Law ChLR Chicago Law Review CHRY Canadian Human Rights Yearbook CIJCDT Constellations: An International Journal for Critical and Democratic Theory CISDL Centre for International Sustainable Development Law CILJ Cornell International Law Journal CILSA Comparative and International Journal of Southern Africa CITES Convention on International Trade in Endangered Species of Wild Fauna and Flora CJICL Cardozo Journal of International and Comparative Law CJIL Chicago Journal of International Law CJLJ Canadian Journal of Law & Jurisprudence CJTL Columbia Journal of Transnational Law CLP current legal problems CLR Columbia Law Review CLR Connecticut Law Review CLYIB Comparative Law Yearbook of International Business CMLR Common Market Law Review CQ Classical Quarterly CRIA Cambridge Review of International Affairs CSW Christian Solidarity Worldwide CTC Counter-Terrorism Committee CTE Committee on Trade and Environment CWILJ California Western International Law Journal CWRJIL Case Western Reserve Journal of International Law CYIL Canadian Yearbook of International Law D Daedalus DDA Doha Development Agenda DJIL Dickinson Journal of International Law DJILP Denver Journal of International Law and Policy DLJ Duke Law Journal DLR DePaul Law Review Dm democratization Documents Documents on British Policy Overseas: Britain and China 1945–1950 DS Der Staat DSA development Southern Africa DSB dispute settlement body DSM Dispute Settlement Mechanism DSU dispute settlement understanding E ethics EC European Commission EIA Ethics & International Affairs EILR Emory International Law Review EJIL European Journal of International Law xvi 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page xvii

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EJIR European Journal of International Relations EJLS European Journal of Legal Studies EJML European Journal of Migration and Law ELJ Emory Law Journal ELR Environmental Law Review ER European Review ESR European Studies Review EU European Union EuLJ European Law Journal FA foreign affairs FAO Food and Agriculture Organization FdR federal register FILJ Fordham International Law Journal FIPMELJ Fordham Intellectual Property Media and Ent. L. J. FJIL Florida Journal of International Law FLR Florida Law Review FM forced migration FMR Forced Migration Review FR federal regulation FYIL Finnish Yearbook of International Law G Governance GATT General Agreement of Tariffs and Trade GEF global environment facility GG global governance GJIL Georgetown Journal of International Law GLJ Georgetown Law Journal GLR Georgia Law Review GNS Grotiana New Series GRBS Greek, Roman and Byzantine studies GrLJ German Law Journal GSP generalized system of tariff preferences GYIL German Yearbook of International Law HAHR Hispanic American Historical Review HHRJ Harvard Human Rights Journal HICJ Harvard International Club Journal HICLR Hastings International and Comparative Law Review HILJ Harvard International Law Journal HJLPP Harvard Journal of Law and Public Policy HJLT Harvard Journal of Law and Technology HLJ Hastings Law Journal HLR Harvard Law Review HLR Houston Law Review HRLR Human Rights Law Review HRQ Human Rights Quarterly HWLJ Harvard Women’s Law Journal IA international affairs IAEA International Atomic Energy Agency IARLJ International Association of Refugee Law Judges xvii 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page xviii

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ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice ICLQ International and Comparative Law Quarterly ICTY Appeals Chamber of the International Tribunal on former Yugoslavia IELR international enforcement law reporter IGOs International Governmental Organizations IICLR Indiana International & Comparative Law Review IJGLS Indiana Journal of Global Legal Studies IJIL Indian Journal of International Law IJMGR International Journal on Minority and Group Rights IJRL International Journal of Refugee Law IJWP International Journal of World Peace IL international law ILC International Law Commission ILJ Indiana Law Journal ILO international law opinions ILO International Labour Organization ILR Iowa Law Review ILS international legal system ILSA International Law Students Association ILSAJICL ILSA Journal of International and Comparative Law IMF International Monetary Fund IMR International Migration Review IMT International Military Tribunal INPI French National Patent Rights Institute IntLR international law reporter IO international organization IOLR International Organizations Law Review IP intellectual property IPHR intellectual property and human rights IPJ Intellectual Property Journal IPR intellectual property rights IRIPCL International Review Industrial Property and Copyright Law IRRC International Review of the Red Cross IS international security ISQ International Studies Quarterly ISR International Studies Review ITFY International Tribunal on former Yugoslavia IYHR Israel Yearbook on Human Rights JAH Journal of American History JCL Journal of Civil Liberties JCMS Journal of Common Market Studies JCR Journal of Conﬂict Resolution JCS Journal of Church and State JCSL Journal of Conﬂict and Security Law JDS Journal of Development Studies JEA Journal of Egyptian Archaeology xviii 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page xix

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JELPLAC Journal of Environmental Law and Policy in Latin America and the Caribbean JHIL Journal of the History of International Law JIEL Journal of International Economic Law JILIR Journal of International Law and International Relations JLR Journal of Law and Religion JLS Journal of Legal Studies JPOI Johannesburg Plan of Implementation JPP Journal of Political Philosophy JR juridical review JRE Jahrbuch für Recht und Ethik JRS Journal of Refugee Studies JWIP Journal of World Intellectual Property JWT Journal of World Trade KJ Kritische Justiz KJLPP Kansas Journal of Law & Public Policy LAIL Latin American International Law LCP law and contemporary problems LJIL Leiden Journal of International Law LJPIL Loyola Journal of Public Interest Law LPBR Law and Politics Book Review LPIB law and policy in international business LQR Law Quarterly Review LRLJ La Raza Law Journal M millennium McLR Michigan Law Review MEA multilateral environmental agreement MJIL Melbourne Journal of International Law MJIL Michigan Journal of International Law MLR Modern Law Review MnLR Minnesota Law Review MPYUNL Max Planck Yearbook of United Nations Law MULR Melbourne University Law Review MWJHR Muslim World Journal of Human Rights NCJILCR North Carolina Journal of International Law and Commercial Regulation ND No date NGO non-governmental organization NI national interest NILR Netherlands International Law Review NJIL Nordic Journal of International law NJILB Northwestern Journal of International Law and Business NLR Nebraska Law Review NR Nueva Revista NRBA Nueva Revista de Buenos Aires NSAHR Non-state Actors and Human Rights NUJIHR Northwestern University Journal of International Human Rights NULR Northwestern University Law Review NYBIL Netherlands YB Int’l L xix 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page xx

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NYIL Netherlands Yearbook of International Law NYUJILP New York University Journal of International Law and Politics OAMPI African Malagasy Patent Rights Authority OAPI African Intellectual Property Organization OAS Organization of American States OECD Organization for Economic Cooperation and Development OEJIPR Oxford Electronic Journal of Intellectual Property Rights OIC Organization of Islamic Conference OLR Oklahoma Law Review OREP Oxford Review of Economic Policy PASIL Proceedings of the American Society of International Law PB philosophical books PKPF Phi Kappa Phi Forum PPA Philosophy & Public Affairs PR Policy Review RBDI Revue Belge de Droit International RC Recueil des Cours RCADIH Recueils des Cours de l’Academie de Droit International de la Haye RCDI Revista Colombiana de Derecho Internacional RDI Revista de Derecho Internacional RDILC Revue de Droit International et de Législation Comparée RECIEL Review of European Community and International Environmental Law RFIC Rivista di Filologia et di Istruzione Classica RGDIP Revue Générale de Droit International Public RHDFE Revue Historique du Droit Français et Étranger RHDI Revue d’Histoire du Droit International RIDA Revue Internationale des Droits de l’Antiquité RIE Review of International Economics RIGO regional inter-governmental organization RIL robust international law RIS Review of International Studies RLS Research in Law and Sociology RP Review of Politics RRLR Rutgers Race and the Law Review RSQ Refugee Survey Quarterly SCLR Southern California Law Review SDILJ San Diego International Law Journal SGOTILC Study Group of the International Law Commission SIDS small island developing states SLLR St Louis Law Review SLR Stanford Law Review SLS social legal studies SsLR Saskatchewan Law Review SULR Seattle University Law Review SYBIL Singapore Year Book of International Law SZIER Schweizerische Zeitschrift für internationales und europäisches Recht T telos TED turtle excluder device xx 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page xxi

LIST OF ABBREVIATIONS

TJIL Texas Journal of International Law TLR Texas Law Review TRIPs trade-related aspects of intellectual property rights TWLS third world legal studies UCLAJIFA UCLA Journal of International Law and Foreign Affairs UCLR University of Chicago Law Review UDHR Universal Declaration of Human Rights ULR Utah Law Review UN United Nations UNCBD United Nations Convention on Biological Diversity UNCCD United Nations Convention to Combat Desertiﬁcation and Drought UNCED United Nations Conference on Environment and Development UNCHE United Nations Conference on the Human Environment UNCSD United Nations Commission for Sustainable Development UNCTAD United Nations Conference on Trade and Development UNDP United Nations Development Program UNEP United Nations Environment Program UNFCCC United Nations Framework Convention on Climate Change UNGA United Nations General Assembly UNSC United Nations Security Council UNTS United Nations Treaty Series UPLR University of Pennsylvania Law Review URLR University of Richmond Law Review UTLR University of Toledo Law Review VJIL Virginia Journal of International Law VJTL Vanderbilt Journal Transnational Law VLR Virginia Law Review VLR Vanderbilt Law Review WB World Bank WCED World Commission on the Environment and Development WD world development WECD World Commission on Environment and Development WGSLR Washington Global Studies Law Review WILJ Wisconsin International Law Journal WIN World Indigenous News WIPO World Intellectual Property Organization WLLR Washington and Lee Law Review WOLR Western Ontario Law Review WP world politics WSSD World Summit for Sustainable Development WTO World Trade Organization WULQ Washington University Law Quarterly YHRDLJ Yale Human Rights and Development Law Journal YIEL Yearbook of International Environmental Law YJIL Yale Journal of International Law YLJ Yale Law Journal ZAORV Zeitschrift für ausländisches öffentliches Recht und Völkerrecht

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Legal cases

African Commission on Human and Peoples’ Rights, Case of the Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria (2002) 96 AJIL 937, 47 J African L 126 [52] AG Israel v. Eichmann (1968) 36 ILR 5 (District Court, Jerusalem) AG Israel v. Eichmann (1968) 36 ILR 277 (Supreme Court of Israel) Akkoç v. Turkey, 10 October 2000. Available at http://www.echr.coe.int/Eng/Press/2000/Oct/ akkoc%20jud%20epress.htm Almog v. Arab Bank, PLC (2007) 471 F. Supp. 2d 257 (E.D.N.Y. 2007) Argentina v. Uruguay, Case Concerning Pulp Mills on the River Uruguay (2006), Request for the Indication of Provisional Measures: Order of 13 July 2006, General List No. 135, 45 ILM 1025 [67] Attorney-General v. Adelaide Steamship Co. (1913) Appeal Cases 781 Balankulama v. The Secretary, Ministry of Industrial Development, SAER (2000) Vol. 7(2) June 2000 (Supreme Court, Sri Lanka – Supreme Court of the Democratic Socialist Republic of Sri Lanka) Bautista de Arellana v. Colombia (1993) No. 563/1993, UN Doc. CCPR/C/55/D/563/1993 Behrami v. France, Application No. 71412/01 Belgium v. Spain, Case Concerning the Barcelona Traction, Light and Power Company, Limited (New Applica- tion: 1962) (1970) (Second Phase, Separate Opinion of Judge Jessup) General List No. 50, [1970] ICJ 3 BeriC and Others v. Bosnia and Herzegovina (2007) Application No. 36357/04, Admissibility decision, 16 October 2007 Bosnia and Herzegovina v. Serbia and Montenegro, Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (2007) Judgment of 26 February 2007 Boumediene [and Al Odah] v. Bush (2007) 476 F.3d 981 (DC Cir. 2007), cert. denied 4/2/07 Bulankulame v. Secretary, Ministry of Industrial Development and Others (2000) 3 SriLR 243 (the Eppawela Case 2000, Supreme Court of Sri Lanka) Caroline Case (1841) BFSP, Case No. 29: 1137-38 Case Concerning Armed Activities on the Territory of the Congo, Merits (Democratic Republic of the Congo v. Uganda) ICJ Reports (2005) Case Concerning the GabDíkovo-Nagymaros Project (Hungary/Slovakia) ( Judgment) General List No. 92 [1997] ICJ 7, (1998) 37 ILM 162 Case Concerning the GabDíkovo-Nagymaros Project (Hungary/Slovakia) (1994) Memorial submitted by the Slovak Republic, Vol. 1, 2 May 1994, 294. Available at http://www.icj-cij.org/docket/ﬁles/92/ 10939.pdf Case Concerning the GabDíkovo-Nagymaros, Separate Opinion of Vice-President Weeramantry Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia) (2002) Judgment, General List No. 102 [2002] ICJ 625 Case Concerning the Territorial Dispute, Libyan Arab Jamahiriya v. Chad (1994) Judgment, General List No. 83 [1994] ICJ 6, (1994) 33 ILM 571 [41]

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LEGAL CASES

Case Concerning United States Diplomatic and Consular Staff in Tehran (1980) ICJ Reports 1980: 41 Celebici (2001) IT-96-21-A, ICTY, Appeals Chamber, Judgment of 20 February 2001 Certain Phosphate Lands in Nauru (Nauru v. Australia) (1992) Preliminary Objections: Judgment, General List No. 80, ICJ 240, 32 ILM 1471 Charan Lal Sahu v. Union of India AIR 1990 SC 1480 Colombia v. Peru, Asylum Case (1950) Judgment, General List No. 7, ICJ 266 Congo v. Rwanda, Case Concerning Armed Activities on the Territory of the Congo (2006) Judgment of 3 February 2006, ICJ Reports 2006 Congo v. Uganda, Case Concerning Armed Activities on the Territory of the Congo (2005) Judgment of 19 December 2005, ICJ Reports 2005 Democratic Republic of Congo v. Belgium, Arrest Warrant of 11 April 2000 (2002) Separate Opinion of Judge Bula-Bula, 14 February 2002 Democratic Republic of Congo v. Belgium, Arrest Warrant of 11 April 2000 (2002) Separate Opinion of President Guillaume, 14 February 2002 Democratic Republic of Congo v. Belgium, Arrest Warrant of 11 April 2000 (2002) Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, 14 February 2002 Democratic Republic of Congo v. Belgium, Arrest Warrant of 11 April 2000 (2002) Separate Opinion of Judge Koroma, 14 February 2002 Democratic Republic of Congo v. Belgium, Arrest Warrant of 11 April 2000 (2002) Dissenting Opinion of Judge Oda, 14 February 2002 Democratic Republic of Congo v. Belgium, Arrest Warrant of 11 April 2000 (2002) Declaration of Judge Ranjeva, 14 February 2002 Democratic Republic of Congo v. Belgium, Arrest Warrant of 11 April 2000 (2002) Separate Opinion of Judge Rezek, 14 February 2002 Democratic Republic of Congo v. Belgium, Arrest Warrant of 11 April 2000 (2002) Dissenting Opinion of Judge Van den Wyngaert, 14 February 2002 Democratic Republic of the Congo v. Uganda, Case Concerning Armed Activities on the Territory of the Congo, Merits (2005) ICJ Reports Detainee Treatment Act (2005) 10 U.S.C. section 801 Note Empire v. Dithmar and Boldt (Hospital Ship ‘Llandovery Castle’) (1921) 2 ILR 437, 16 AJIL 708 Erie R.R. v. Tompkins (1938) 304 U.S. 64 Eritrea v. Yemen (Phase Two: Maritime Delimitation) 119 ILR, 417 Falminio Costa v. ENEL (1964) European Court of Justice, Case No. 6/64 Fédération Nationale des Déportés et internés résistants et patriotes et al. v. Barbie (1984) 78 ILR 125, 135 Foreign Intelligence Surveillance Act 50 USC, Sections 1801–1863 Foster v. Neilson (1829) 27 US 253 France et al. v. Göring et al. (1946) 22 IMT 203, 13 ILR 203, 41 AJIL 172 France v. Turkey, S.S. Lotus (1927) PCIJ Ser. A. ( Judgments) No. 10 ( Judgment No. 9) (1929) France v. United States of America, Case Concerning Rights of Nationals of the United States of America in Morocco (1952) Merits, General List No. 11, ICJ 176 Gayler v. Wilder (1850) 51 US (10 How.) 477 Hamdan v. Rumsfeld (2006) 126 S.Ct.2749 Inter-American Court of Human Rights, Case of the Sawhoyamaxa Community (Paraguay) (2006) [137]– [141] Inter-American Court of Human Rights, Case of the Saramaka Peoples (Suriname) (2007) [93]–[95], 122, 129–132 In the Arbitration Regarding the Iron Rhine (Ijzeren Rijn) Railway, Belgium v. Netherlands (2005) Arbitral Award of 24 May 2005. Available at http://www.pca-cpa.org/showfile.asp?fil_id=377 In the Arbitration Regarding the Iron Rhine (Ijzeren Rijn) Railway, Belgium v. Netherlands (2003) Memorial submitted by Belgium. Available at http://www.pca-cpa.org/upload/files/BE%20Memorial.pdf Islamic Republic of Iran v. United States, Oil Platforms Case (2003) ICJ Reports, Judgment of 6 November 2003. Online. Available at http://212.153.43.18/icjwww/idocket/iop/iopjudgment/iop_ ijudgment_20031106.pdf Kasikili/Sedudu Island (Botswana/Namibia) Judgement, General List No. 99 [1999] ICJ 1045 (2000) 39 ILM 310 [18] Kessler and Krenz Streletz v. Germany, 22 March 2001 Koolwal v. Rajasthan AIR 1998, Raj. 2

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LEGAL CASES

Laureano v. Peru (1993) No. 540/1993, UN Doc. CCPR/C/56/D/540/1993 Layla Sahin v. Turkey (2005) ECHR 44774/98 Leatch v. National Parks and Wildlife Service and Shoalhaven City Council (1993) 81 LGERA 270 (1993) (NSW Land and Environment Court, Australia) Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) ICJ Advisory Opinion, 9 July 2004, ICJ Reports 2004 Legality of the Threat or Use of Nuclear Weapons (1996) 35 ILM. Online. Available at http://www.icj- cij.org/docket/ﬁles/95/7495.pdf Libya v. US, Case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie, Jurisdiction and Admissibility (1998) ICJ Reports, 37 ILM 187 Libyan Arab Jamahiriya v. United States of America, Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie, Dissenting opinion by Judge Weeramantry (1992) International Court of Justice LICRA et UEJF v. Yahoo! Inc. (2000) Ordonnance Référé, TGI. Paris, Nov. 20, 2000. Available in English at http://www.lapres.net/yahen11.html (Daniel Lapres trans.) MC v. Bulgaria (Application No. 39272/98), Judgment, 4 December 2003 Military Commissions Act (2006) Public Law No. 109-366, 120 Stat. 2600 Military Order, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism (2001) 66 Fed. Reg. 57, 833, 16 November 2001 Milpurrurru v. Indofurn (Pty) Ltd (1995) 30 IPR 209 Minors Oposa v. Secretary of the Department of Environment and Natural Resources, DENR (1994) 33 I.L.M. 173 (Philippines) Nicaragua v. USA, Case concerning Military and Paramilitary Activities in and against Nicaragua (1986) ICJ Reports 1986, 76 ILR 1 North Sea Continental Shelf Case (Federal Republic of Germany vs. Denmark/Netherlands) ICJ Reports (1968) Nuclear Tests Case (New Zealand v. France) (1995) Request for an Examination of Situation in Accordance with Paragraph 63 of Court’s Judgment of 20 December 1974: Order, Dissenting opinion by Judge Weeramantry, General List No. 97, ICJ 288 Oil Platforms Case (Islamic Republic of Iran v. United States), ICJ Reports (2003) Available at http:// 212.153.43.18/icjwww/idocket/iop/iopjudgment/iop_ijudgment_20031106.PDF Portugal v. Australia, Case concerning East Timor (1995) Judgment, Dissenting opinion of Judge Weeramantry, General List No. 84, [1995] ICJ 90, 34 ILM 1581 Prosecutor v. Dusko Tadic (1999) ICTY, No. IT-94-1-A, Appeals Chamber, 15 July 1999 Prosecutor v. ErdemoviC (1997a) Case No. IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, 7 October 1997 Prosecutor v. ErdemoviC (1997b) Case No. IT-96-22-A, Separate and Dissenting Opinion of Judge Li, 7 October 1997 Prosecutor v. MiloSeviC (2001) Case No. IT-02-54-PT, Decision on Preliminary Motions, 8 November 2001 Prosecutor v. NikoliC, Decision on Interlocutory Appeal Concerning Legality of Arrest (2003) Case No. IT-94- 2-AR73, 5 June 2003 Prosecutor v. Stanislav GaliC (2003) Case No. IT-98-29-A, Judgment, Trial Chamber 3 December 2003, and Appeals Chamber, 30 November 2006 Prosecutor v. TadiC, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction (1995) ICTY, Case No. IT-94-1-AR72. Available at http://www.un.org/icty/tadic/appeal/decision-e/51002.htm Prosecutor v. Taylor (2004) Case No. SCSL-2003-01-I, Decision on Immunity from Jurisdiction, 31 May 2004 R. v. Bartle and the Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte (1999) 2 All ER 97 (HL) Rajendra Parajuli and Others v. Shree Distillery Pvt Ltd and Others, Supreme Court of Nepal (Writ No. 3259, 1996) Reid v. Covert (1957) 354 US 1 Republic of the Congo v. France, Case Concerning Certain Criminal Proceedings in France (2002) Application, 9 December 2002 Republic of the Congo v. France, Case Concerning Certain Criminal Proceedings in France, Request Provisional Measure, Order of 17 June 2003 (2003) ICJ Reports 102

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LEGAL CASES

Right to Information on Consular Assistance in the Framework of the Guaranteed of the Due Process of Law (1999) ICtHR, Advisory Opinion, OC-16/99 of 1 October 1999, Series A No. 16 Sabra and Shatila Inquiry (1982) Saramati v. France, Germany and Norway (2007) Application No. 78166/01, Grand Chamber, 2 May 2007 Saudi Arabia v. Aramco (1963) 27 ILR 117 S.S. Wimbledon Case (1923) PCIJ, Ser. A., No. 1 Cong. Rec. 110 888, § 1 Cong. Rec. 110 H.R. 2489 § 1 Cong. Rec. 153 S 4150 Cong. Rec. 153 H 14207 Texaco/Calasiatic v. Libya, Arbitral Award (1978), 17 ILM 28–29 United Kingdom of Great Britain and Northern Ireland v. Iceland, Case Concerning the Fisheries Jurisdiction (1974) Merits, Dissenting Opinion of Judge Petrel, General List No. 55, [1974] ICJ United States of America v. Iran, United States Diplomatic and Consular Staff in Tehran (1979) International Court of Justice United States Diplomatic and Consular Staff in Tehran, 1980 ICJ Rep. 3 United States Federal Crime Code 18 USC Section 2331 (1) United States Foreign Intelligence Surveillance Act (1978) 50 USC Sections 1801–1863 United States Patent Act (1982) 35 USC 101 United States Protect America Act of 2007 (2007) Pub.L. No. 110-55, 121 Stat. 552 Velázquez Rodriquez v. Honduras, 29 July 1988, Series C, No. 4 (1992) Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647 (Supreme Court, India) Vellore Citizens Welfare Forum v. Union of India AIR (1996) SC 2715 WTO, Brazil: Measures affecting Imports of Retreaded Tyres, Panel Report (12 June 2007) WT/DS332/R WTO, Brazil: Measures affecting Imports of Retreaded Tyres, Report of the Appellate Body (3 December 2007) WT/DS332/AB/R WTO, European Communities: Conditions for the Granting of Tariff Preferences to Developing Countries, Appellate Body Report (20 April 2004) WT/DS246/AB/R WTO, United States: Import Prohibition of Certain Shrimp and Shrimp Products Sector, Panel Report (15 May 1998) WT/DS58/R WTO, United States: Import Prohibition of Certain Shrimp and Shrimp Products Sector, Report of the Appellate Body (20 September 1999) WT/DS58/AB/R WTO, United States: Import Prohibition of Certain Shrimp and Shrimp Products Sector, Recourse by Malaysia to Article 21.5 of the DSU (13 October 2000) WT/DS58/17 WTO, United States: Import Prohibition of Certain Shrimp and Shrimp Products Sector, Recourse to Article 21.5 by Malaysia, Panel Report (15 June 2001) WT/DS58/RW WTO, United States: Import Prohibition of Certain Shrimp and Shrimp Products Sector, Recourse to Article 21.5 by Malaysia, Report of the Appellate Body (22 October 2001) WT/DS58/AB/RW WTO, United States: Standards for Reformulated and Conventional Gasoline, Report of the Appellate Body (29 April 1996) WT/DS2/AB/RW Yahoo! Inc. v. La Ligue Contre Le Racisme et l’Antisemitisme (2006) 433 F.3d 1199 (9th Cir., 12 Jan 2006 en banc) Yugoslavia v. Belgium, Legality of the Use of Force (1999) ICJ Reports, 38 ILM 124

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Reports, legislation and treaties

Administration of George W. Bush (2001) Military Order, Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism, FR, 66: 1665. Available at http://www.law.cornell.edu/ background/warpower/fr1665.pdf African Union (2007) Decision on the United Nations Declaration on the Rights of Indigenous Peoples, Addis Ababa, Ethopia: African Union. Available at http://www.africa-union.org/root/UA/Conferences/ 2007/janvier/SUMMIT/Doc/Decisions/Decisions%20and%20Declarations%20-%208th%20Ordinary %20Session%20of%20the%20Assembly.doc Agenda 21 (Annex 2), in Report of the UN Conference on Environment and Development Vol. I (13 June 1992) UN Doc. A/CONF.151/26 (Vol. I); 31 ILM 874 Agreement Establishing the World Trade Organization (1994) 33 ILM 81, 15 April 1994. Available at http://www.wto.org/english/docs_e/legal_e/04-wto.pdf Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), annex, (1951) 82 UNTS 279 Amnesty International (2003) Iraq: Memorandum on concerns relating to law and order, 23 July 2003. MDE 14/157/2003. Available at http://web.amnesty.org/library/Index/ENGMDE141572003?open&of= ENG-IRQ Antarctic Treaty (1959) 402 UNTS 71 Assemblée Nationale (1999) Rapport d’Information déposé en Application de l’Article 145 du Règlement par la Mission d’Information de la Commission de la Défense nationale et des Forces armées et de la Commission des Affaires étrangères, sur les Opérations militaires menées par la France, d’autres pays et l’ONU au Rwanda entre 1990 et 1994, Assemblée Nationale, No. 1271. Available at http://www.assemblee-nationale.fr/11/ dossiers/rwanda/r1271.asp Association of the Bar of the City of New York and Center for Human Rights and Global Justice (2004) Torture by Proxy: International and Domestic Law Applicable to “Extraordinary Renditions”, revised June 2006. Available at http://www.chrgj.org/docs/TortureByProxy.pdf Australia, A.G. (2003) The Memorandum of Advice on the Use of Force Against Iraq, provided by the Attorney General’s Department and the Department of Foreign Affairs and Trade, March 18, 2003, 19 March 2003 Banks, R. (2006) UNGA Third Committee 61st Session, Monday 16 October, Item 64(a) Declaration on the Rights of Indigenous Peoples, Statement by H.E. Ms. Rosemary Banks, Ambassador and Permanent Representative of New Zealand, on behalf of Australia, New Zealand and the United States, New York: Australian Permanent Mission to the United Nations. Available at http:// www.australiaun.org/unny/Soc%5f161006.html Basis for Relations between Finland and the Russian Federation (signed 20 January 1992, entered into force 11 July 1992) 1691 UNTS 255 Bellinger, J.B. (2003) Authority for Use of Force by The United States against Iraq under International Law, 10 April 2003. Council on Foreign Relations xxvi 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page xxvii

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Breton-Le Goff, G. (2001) Mondialisation et Démocratie: Evaluation de la Participation normative des OING à la Gouvernance globale, Montreal: Chaire UNESCO d’Études des Fondements philoso- phiques de la Justice et de la Société démocratique. Available at http:www.humansecuritygateway. info/data/item761840995/view Brownlie, Chinkin, Greenwood and Lowe (2000) Memoranda on Kosovo to House of Commons Foreign Affairs Committee, 49 International Comparative Law and Quarterly, 876–943 Bush, G.W. (2003) State of the Union, 28 January 2003. Available at http://www.whitehouse.gov/ news/releases/2003/01/20030128-19.html Carnegie Endowment for International Peace. Division of International Law (1938) Conferencias internacionales americanas, 1889–1936; recopilación de los tratados, convenciones, recomendaciones, resoluciones y mociones adoptadas por las siete primeras conferencias internacionales americanas, la Conferencia internacional americana de conciliación y arbitraje y la Conferencia interamericana de consolidación de la paz; con varios documentos relativos a la organización de las deferidas conferencias, Washington: Dotación Carnegie Para la Paz Internacional —— (1943) Conferencias internationales americanas, primer-suplemento, Washington: Dotación Carnegie Para la paz internacional Charter of the International Military Tribunal Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), Annex, (1951) 82 UNTS 279 Charter of the Organization of Islamic Conference. Available at http://www.oic-un.org/about/Charter.htm Chatham House (2005) High-level Expert Group, Principles of International Law on the Use of Force by States in Self-Defence, International & Comparative Law Quarterly, 2006, 55: 963–972 Coalition Provisional Authority (2003) Coalition Provisional Authority Regulation Number 1, 16 May 2003. CPA/REG/16 May 2003/01 Coalition Provisional Authority (2004) Law of Administration for the State of Iraq for the Transitional Period, 8 March 2004 Commission of the European Communities (2002) Action Plan “Simplifying and Improving the Regulatory Environment”, Brussels, COM(2002)278 final, 5 June 2002 —— (2003) Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions: Updating and simplifying the Community acquis, Brussels, COM(2003)261 final, 11 February 2003 Committee on Trade and Environment, Report of the Meeting held on 6 July 2005 (2 September 2005) WT/CTE/M/40 Committee on Trade and Environment, Trade in Used and Retreated Tyres, Submission by Brazil (12 July 2005) WT/CTE/W/241 Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, Advisory Opinion (1935) PCIJ 2, Series A/B, No. 65, 4 December 1935 Consolidated Versions of the Treaty on European Union (signed 17 February 1992) OJ C 321E of 29 December 2006. Available at http://eur-lex.europa.eu/en/treaties/index.htm Convention on Biological Diversity (1992) Rio Earth Summit Convention on the Conservation of Migratory Species of Wild Animals (1980) 19 ILM 15 Convention for Cooperation in the Protection and Sustainable Development of the Marine and Coastal Environment of the Northeast Pacific (18 February 2002). Available at http://dinrac.nowpap.org/3-sea-north-west- pacific-convt.htm Convention on International Trade in Endangered Species of Wild Fauna and Flora (1973) (adopted 3 March 1973, entered into force 1 July 1975) 993 UNTS 243, 12 ILM 1085 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (1968) 754 UNTS 73 Convention on the Prevention and Punishment of the Crime of Genocide (1951) 78 UNTS 277 Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (1999) 30 ILM 1 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46 Daes, E. (2001) Report to the United Nations Economic and Social Council. Prevention of Discrimina- tion and Protection of Indigenous Peoples and Minorities: Indigenous Peoples and their Relationship to Land, Geneva: United Nations. Available at http://www.unhchr.ch/Huridocda/Huridoca.nsf/ e06a5300f90fa0238025668700518ca4/78d418c307faa00bc1256a9900496f2b/$FILE/G0114179.pdf

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—— (2002b) Resolution 1441, 8 November 2002. Available at http://daccessdds.un.org/doc/ UNDOC/GEN/N02/682/26/PDF/N0268226.pdf?OpenElement —— (2003a) 4701st Meeting, 5 February 2003. S/PV.4701. Available at http://daccessdds.un.org/doc/ UNDOC/PRO/N03/236/00/PDF/N0323600.pdf?OpenElement —— (2003b) United Nations Security Council Resolution 1483, UN GAOR, 58th Sess., UN Doc. S/RES/1483 —— (2003c) United Nations Security Council Resolution 1511, UN SCOR, 58th Sess., 4844th mtg., at 3, UN Doc. SC/RES/1511 —— (2003d) Letter Dated 8 May 2003 from the Permanent Representatives of the United Kingdom of Great Britain and Northern Ireland and the United States of America to the United Nations Addressed to the President of the Security Council, 8 May 2003. S/2003/538. Available at http://documents-dds-ny.un.org/doc/ UNDOC/GEN/N03/353/19/pdf/N0335319.pdf?OpenElement —— (2004a) United Nations Security Council Resolution 1546, 8 June 2004, UN Doc. S/RES/1546 —— (2004b) United Nations Security Council Resolution 1540, UN SCOR, 59th Sess., 4956th mtg., UN Doc. S/1540 (2004) —— (2007) United Nations Security Council, 62nd year: 5796th meeting, Monday, 10 December 2007, New York, S/PV.5796. Available at http://daccessdds.un.org/doc/UNDOC/PRO/N07/633/72/ PDF/N0763372.pdf ?OpenElement United Nations War Crimes Commission (1948) History of the United Nations War Crimes Commission and the Development of the Laws of War. London: His Majesty’s Stationery Ofﬁce United States (1787) The Constitution of the United States of America. Philadelphia, 14 May 1787. Available at http://www.gpoaccess.gov/constitution/index.html —— (1996) Information Security: Computer Attacks at Department of Defense Pose Increasing Risks, Abstracts of GAO Reports and Testimony, GAO/T-AIMD-96-92 Available at http://www. gao.gov/archive/1996/ai96092t.pdf —— (2002) National Security Strategy of the United States of America. Available at http://www. whitehouse.gov/nsc/nss.pdf —— (2005) The National Defense Strategy of the United States of America. Available at http://www. defenselink.mil/news/Mar2005/d20050318nds2.pdf —— (2006a) National Space Policy, 6 October 2006. Available at http://www.globalsecurity.org/ space/library/policy/national/us-space-policy_060831.pdf —— (2006b) Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 —— (2006c) Department of Defense Appropriations Act of 2006 (incorporating Detainee Treatment Act of 2005). 10 USC 801 United States Department of State (2003) Bush Has Legal Authority to Use Force in Iraq, Adviser Says, 21 March 2003. Available at http://usinfo.state.gov/dhr/Archive/2003/Oct/09-215033.html United States Federal Crime Code 18 USC Section 2331 (1) United States Foreign Intelligence Surveillance Act (1978) 50 USC Sections 1801–1863 United States Protect America Act of 2007 (2007) Pub. No. 110-55, 121 Stat. 552 US Department of State (2007) Brieﬁng on Release of 2006 Country Reports on Terrorism, 30 April 2007 Vienna Convention on the Law of Treaties (Vienna, 23 May 1969, entered into force 27 January 1980) 1155 United Nations, Treaty Series (UNTS) 331, 8 ILM 679 Warwick Commission, First Report (2007) The Multilateral Trade Regime: Which Way Forward?, Coventry: University of Warwick, December 2007. Available at http://www2.warwick.ac.uk/ research/warwickcommission/report World Commission on Environment and Development (WCED) (1987) Our Common Future. Oxford: Oxford University Press World Commission on Environment and Development (WCED) (1987) Our Common Future, UN World Commission on Environment and Development Rep (4 August 1987) UN Doc. A/42/427 World Intellectual Property Organization (2007) WIPO Patant Report: Statistics on Worldwide Patent Activities. Available at http://www.wipo.int/export/sites/www/freepublications/en/patents/931/wipo_pub_ 931.pdf World Summit (2005) World Summit Outcome Document (Follow-up to the Outcome of the Millennium Summit), UN Doc. A/60/L.1, 20 September 2005. Available at http://www.un.org/summit2005

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Introduction

David Armstrong

This handbook represents an attempt to con- developments that seem to point to its vey the extraordinarily exciting point that robustness and indeed its growing signific- international law (IL) has reached today, ance. The seeming powerlessness of the law both as an academic discipline and as a work- of force in the face of multifaceted assaults ing system of law. In disciplinary terms, legal on it from various quarters coexists with far theorists have engaged with international reaching extensions of the law of force since relations (IR) and other academic fields to the end of the cold war. The same picture of offer new, sophisticated ways of tackling – and an underlying vitality apparent in the constant going well beyond – old questions about the dialectic of challenge and response can be seen authentic “legality” or otherwise of interna- in developments in the IL of the environment, tional law and its essential nature, effective- trade, criminality, human rights and other ness, content and sources, the community it areas, while its centrality to some of the key serves as well as its future potential. In so doing issues of the day is apparent in its role in seri- they have reinvestigated the history of inter- ous international problems such as terrorism, national law, questioning, among other refugees and the many difficult issues relat- things, old certainties about its emergence as ing to international distributive justice. a by-product of European modernity, its None of this is to argue that one can point emphasis on state sovereignty, its embodiment unreservedly to a picture of constant, unam- of a “standard of civilization” as determined biguous progress and academic consensus. It by its European members, its relation to is perhaps appropriate in a subfield of law that natural law and other moral, religious and any proposition is likely to be immediately ideological doctrines and the degree to which countered by an equally forceful counter- it helped to legitimate oppression of indigen- proposition. The glass is half full for some, half ous peoples and was complicit in other acts of empty for others. The United States has imperial exploitation. As far as the practice become the greatest threat to IL or its great- of IL is concerned, the twenty-first century est hope. Violence is out of control, evidenced has already presented not only extensive and by death rates in Iraq, the Congo, Somalia and complex challenges that have sometimes elsewhere or it is increasingly coming under seemed to indicate the fragility of IL but also law’s remit, as evidenced by the first true UN responses to those challenges alongside other collective security operation against Kuwait 1 9780415418768_4_000.qxd 26/11/2008 02:34PM Page 2

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in 1991 and the various humanitarian inter- This discourse forms the context within ventions since then. Indeed, humanitarian which the handbook has been written. We interventions are a violation of the core inter- have invited a group of leading academic national legal principles of sovereignty and writers, together with some of the younger non-intervention or they represent enorm- “rising stars” of the profession to discuss ously important advances on that doctrine. important aspects of international law today: Human rights are subject to more systematic both disciplinary and practical. Perspectives and widespread abuses than ever before and from all five continents are represented here. are even threatened in their western home- While all authors were asked to set out the land by anti-terror legislation or, with the key issues involved in each subject area, they International Criminal Court (ICC) and other were also invited to range as freely as they developments, especially in the European wished over any facets they considered to be Union, they are increasingly coming under particularly significant or exciting. Although international protection and are sustained by most of our contributors are international effective international institutions. Environ- lawyers, several (including the editor) are IR mental law is unlikely to be able to overcome specialists since (notwithstanding reserva- the self-interested short-termism of powerful tions a few of our contributors have expressed national, sub-national and transnational on other occasions) some of the more inter- lobbies or the increasingly strong scientific esting intellectual speculation in recent years consensus about climate change is leading has sprung from IR–IL interaction. The inevitably to an extensive and effective legal handbook is broadly organized into four sec- regime. The rules and disputes settlement tions, as outlined next, although some topics system of the WTO represent a significant have been addressed from very different per- and more institutionalized advance on its Gen- spectives by authors in two or more sections. eral Agreement on Tariffs and Trade (GATT) The first section, entitled “The nature of predecessor or they merely reflect the inter- international law” investigates six crucial ests of the powerful against the weak and aspects of contemporary international law, are in any case imperilled by deep divisions with the aim of both providing readers with between the EU and the USA or between the an up-to-date introduction to them and richest and poorest states. Even in the area of exploring some more cutting-edge facets. theoretical development there are deep divi- In their different ways, all six chapters illus- sions between positivist, critical, constructivist, trate the practical and intellectual linkages postmodern and other theorists and also over between IR and IL. This is most explicitly the broader issue of whether IL gains from the case of Robert Beck’s chapter on IL its interaction with IR and other disciplines and IR scholarship, which offers the most or loses by diluting its claim to be a true form comprehensive appraisal yet to have appeared of law and hence to be assessed by the kinds anywhere of the interdisciplinary engagement of criteria that apply to law generally, namely between scholars in both fields of study. the existence of rules that are set out in Interestingly, Beck’s conclusions in his precise linguistic forms, that are administered definitive study are to be found in some of and enforced through well-understood and the handbook’s recurring themes: that inter- universally applicable procedures by independ- disciplinary scholarship will pay increasing ent institutions specifically established for attention to the “vital roles of non-state that purpose and by professionally trained actors and processes,” that the relationship individuals employing legal reasoning rather between domestic and international relations than moral arguments, with outcomes deter- will incur “sustained, if not increased, inter- mined by purely legal, rather than political, disciplinary attention” and that interdisciplin- moral or other considerations. ary scholarship, like much of social science 2 9780415418768_4_000.qxd 26/11/2008 02:34PM Page 3

INTRODUCTION

generally, is likely to remain separated into crucial for its acceptance and legitimacy.” rational choice and sociological (especially The theorist attempting to distinguish legal social constructivist) camps. from non-legal norms, for instance, needs to The interdisciplinary engagement is also understand various extra-legal and historic- apparent in what, on the face of it, is the most ally contingent factors and the impact of the obviously “legal” chapter in this section, many wide-ranging socioeconomic processes Dinah Shelton’s “Soft law,” which emphas- encapsulated in the term “globalization.” izes the limitations imposed by the political Andreas Paulus addresses a key question for context within which states and other actors both IL and IR: is there such a thing as an construct international law, while concluding international “community” and, if so, what that strong expectations of compliance with do we mean by the term? On the one hand, non-binding norms may still be possible. references to the “emergence of a new The “soft law” concept, which obviously global home, a worldwide village of human relates closely to IR’s “soft power,” thus con- commonality emphasizing interpersonal ceives of a structure of normative constraints bonds rather than territorial borders” have pro- on non-state as well as state actors that is not liferated in the era of globalization. On the dependent on the coercive accoutrements that other, some have argued that the post-9/11 some require of “true law.” Similarly, Tony world has made the notion of globally shared Carty’s chapter on “The practice of IL,” in values and a sense of community harder to seeking to unravel what the core IL concept sustain. He tackles this conundrum from of custom and its requirement of opinio juris three theoretical perspectives that are com- really mean, points to the need for the inter- mon to IR and IL: institutionalist, neoliberal national lawyer “to understand state conduct and postmodernist as well as from the new and this means having reliable access to state concept of “global administrative law.” The intentions.” This in turn requires “a frame- notion of an international community was first work of analysis of state activity that allows a put forward by such early IL theorists as Suarez, legal analyst to engage in effective analysis of Grotius, Wolff and Vattel and has become the the conduct of states as actors in international central concept of the so-called “English society.” He uses archival sources to consider school” of IR, so it is one of the clearest specific case studies of British foreign policy instances of the way in which the two discip- but the larger implication of his argument lines intermesh. Anthony D’Amato’s chapter, is that, while it is eminently possible for “International law as a unitary system,” start- lawyers to retain a perspective that remains ing with the same difficulty about the opinio distinctively “legal,” we also need to develop juris requirement also addressed by Carty, ways of understanding state practice that take asserts “no one in the 4000-year history of fuller account of how decision making actu- international law has ever been able to deter- ally works in a society of competing states pur- mine, even once, whether any state was suing their own interests. acting under the belief that its action was The three remaining chapters also reflect compulsory under international law.” He the interplay between the two disciplines. goes on to suggest that international lawyers Friedrich Kratochwil – the only IR profes- should draw on the political science concept sor in this section – argues that “while the of a “system” to develop an understanding self-description of law as the application of of the context within which IL operates relevant norms to a case is susceptible to tradi- not just as a neutral background, but in tional ‘jurisprudential’ modes of reflection, effect as an active player taking “an active the task of legal theory is wider as it brings role in avoiding, reducing, or resolving into focus the background conditions that conflicts” and promoting “international co- are not necessarily part of law but that are operation by fostering rules that maximize the 3 9780415418768_4_000.qxd 26/11/2008 02:34PM Page 4

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interconnections among states.” The notion reflected the transition from late medieval of an international legal system (ILS) thus Christendom to the Westphalian era of becomes the “long-awaited interdisciplinary sovereign states now challenged by more bridge to political science.” complex and sophisticated analyses such Our second section, “Evolution of inter- as Keene’s. Martti Koskenniemi takes us to national law,” considers from a historical the nineteenth century, where, drawing on perspective some of the interesting develop- some of his own recent work in this area, ments in IL from ancient times to today. he presents a magisterial overview of the The history of IL is a field that has attracted “vocabularies of legitimacy that accompanied growing interest in recent years, as evid- the consolidation of the (European) states sys- enced particularly by the appearance of the tem.” Using his famous distinction between Journal of the History of International Law in 1999. IL as “apology” (searching for effectiveness This interest was not merely a reflection of by associating itself with state power) and the need for greater scholarship in a hitherto “utopia” (trying to emphasize its autonomy neglected area but also grew out of an from the policies and diplomacy of states with increasing discontent in Asia, Latin America, a view to grounding itself in universal moral Africa and elsewhere about what were seen and political values) he concludes that IL has as the Eurocentric and US-dominated study severely weakened its capacity to act as “a of IL generally. The assumption that inter- platform over which the struggles for the national law does not really commence until distribution of the world’s economic and sixteenth-century Europe has also been one spiritual resources are being waged.” By way of the reasons behind a neglect of ancient inter- of contrast, Liliana Obregón points to the national law. Here the leading specialist on importance of sovereignty as a principle that ancient international law, David Bederman, helped to underwrite the international legal points to the “double blight” faced by stu- system that developed among the newly in- dents of ancient international law, namely the dependent Latin American states in the nine- “perception that all law in ancient times was teenth century. She shows how a distinctive primitive. Ancient law was formalistic, dom- Latin American international law (LAIL) inated by fictions, had a limited range of legal emerged that drew on the experience of the norms, and was based solely on religious sanc- “creole” elites both during and after Spanish tion” and also the belief that international rule. The transnational legal consciousness that law as such, is a “primitive legal order.” He underpinned this continued to be influential examines three fundamental areas of states’ with attempts to articulate a regional IL in relations that appeared to be influenced by the twentieth century: albeit one that still consistent rules or norms of international reflected the outlook of the (male) elites. behavior, concluding “that there did exist in Mashood Baderin’s starting point in his the ancient world a set of sources, processes study of the relation between religion and IL and doctrines that constitute the beginnings is that both are important social phenomena of an international legal consciousness.” that relate to fundamental social issues. He Edward Keene focuses on two related then proceeds to consider their interaction questions: the evolution of the underlying from historical, theoretical, empirical and doctrines of IL from the sixteenth to the legal perspectives. He indicates how recent eighteenth centuries and the changes in legal research has provided a much subtler and training during the same period that filtered richer picture of the origins of IL than through into the practice of IL. These are both the Westphalian Euro- and Christian-centric areas that have attracted increasing attention analyses, especially with regard to Islam but in recent years, with easy assumptions about also other religions such as Hinduism and how developments during this period mainly Buddhism. Although IL became increasingly 4 9780415418768_4_000.qxd 26/11/2008 02:34PM Page 5

INTRODUCTION

secular and positivist, the post-9/11 world was the specifically American dimension of the increasingly to reflect the divisions between question of law and power. Where many secular and non-secular states. Theorists have observers focus on what they see as an responded to this and other challenges by elab- increasing American disregard for IL she orating “separationist,” “accommodationist” offers a more nuanced view which does not and “double-edged” perspectives while in seek to condemn or excuse the US but to the world of legal practice he points to four try to understand apparent anomalies in US main ways in which religion and law inter- behavior and to highlight elements of both act, concluding that, if IL is to go beyond a continuity and change in the US approach. narrow positivism and instrumentalism, it Rejecting simplistic explanations of US cannot continue to ignore religion. Finally, actions in terms of its “unilateralism,” she Marc Weller, looking to the near future, dis- identifies recurring trends: the US use of integrative tendencies such as the fragmen- IL to disseminate its policy preferences, its tation of the legal order and unilateralism guarding against the use of IL to influence by the USA notwithstanding, sees a move its own law and policy where important towards a universal constitutional system national interests are involved and the fact that emerging from the need for genuinely global – with certain provisos – it takes IL seriously. responses to global problems. Pointing to the Wayne Sandholtz examines the most increasing empowerment of nonstate actors, controversial aspect of recent American including international institutions, he goes (and British and other coalition partners’) so far as to speculate that the modern state behavior: the Iraq war. In a careful and system may actually be “melting away.” thoroughgoing analysis of all of the major Section III, on law and power, confronts legal arguments that this war has thrown what many would see as the most crucial up – whether certain UN Security Council question facing contemporary IL: whether its resolutions gave it direct or implied author- foundational principle of sovereignty, taken ization, whether it could be justified by to its logical conclusion, produces a world other legal arguments such as self-defense in which the most powerful states disregard or humanitarian intervention, whether the IL whenever it does not suit them, which coalition observed IL relating to occupation many see as having been characteristic of the and detainees – he concludes that, while the post-9/11 American administration. Gerry picture with regard to occupation contain Simpson looks at the interplay and debate some complexities, the various legal justi- between this perspective and two other fications of the war and the treatment of viewpoints about the law of force and inter- detainees are fundamentally flawed. national order: an “absolutist” view that Beth Simmons and Allison Danner “seeks to approach war and peace through examine the International Criminal Court: non-negotiable, universalizeable and un- another case where some have criticized US qualified moral truths” and a legal pacifism intransigence as evidence of its hostility attempting to use law to abolish war. After towards international law. Although Russia, presenting a brief historical account of the China, India, Pakistan and Israel have also law of force, he analyzes in depth the legal refused to join, the US was seen as the most complexities raised by the – theoretically un- hostile inasmuch as it actively worked against controversial – notion of self-defense and the ICC in various ways until recently when by the way in which the UN and NATO, it did not veto a referral of Darfur to the following the success of the collective secur- ICC by the UN Security Council. Simmons ity operation of the first Iraq war, embarked and Danner outline the history of the ICC’s on various “humanitarian interventions.” formation including the tussles between Shirley Scott concentrates more directly on advocates and opponents of a much stronger 5 9780415418768_4_000.qxd 26/11/2008 02:34PM Page 6

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regime. They point to some of its key weak- terrorism, injury to submarine cables, the use nesses, especially its dependence on state co- of nuclear weapons, environmental issues, operation and the fact that it has so far tended hostage taking and economic aggression to the to focus on incidents in defeated and weak list of crimes against the “peace and security countries. They also refer to their earlier empir- of mankind.” Schabas outlines the legal con- ical research on reasons for ratification of the sequences of increasing international crimin- ICC. They see the Court – still in its infancy alization and argues for the development of – as, various problems notwithstanding, a a theoretical construct that enables us more significant innovation in international law. clearly to define international crimes and dis- Our remaining contributions examine in tinguish them from other kinds of offence. much greater detail some of the key issues John Murphy’s chapter on terrorism begins in IL. All of them are concerned, in differ- robustly with the assertion that the term ent ways with what Allen Buchanan and “terrorism” is “imprecise, it is ambiguous, and Russell Powell term “robust international it serves no operative legal purpose.” But “the law”: rules that do not simply concern them- hard school of experience” shows that the term selves with IL’s traditional remit of relations has constituted, and continues to constitute, between states but which aspire to regulate a major barrier to efforts to combat the crim- matters within states. Buchanan and Powell’s inal acts often loosely described as “terrorism”. carefully structured argument in their He stresses that the more recent versions of “Fidelity to constitutional democracy and Islamist terrorism have posed particular to the rule of international law” considers an problems because their practitioners appear assertion advanced by “new sovereigntists,” much less constrained than previous terrorist especially in the US, namely that robust IL is groups by the need not to lose popular sup- incompatible with democracy. They suggest port. He reviews the debate between those that this rests on implausible assumptions advocating a criminal law approach to terrorists but accept that there are genuine problems and those emphasizing a military response, relating to how much self-government a although he notes that there has been a democratic people should relinquish to greater convergence recently between these international institutions and the kinds of two perspectives. He concludes by looking democratic process required when democra- at the various issues, both legal and operational, cies accept such limitations. While arguing involved in the “war on terror.” that American writers should pay more atten- The following five chapters address – tion than they do to the EU experience, they albeit in very different ways – problems reject the EU principle of subsidiarity, argu- stemming in part from the marginalization or ing instead for a process of authorization of exclusion of some of those most affected by the transfer of significant powers to external particular areas of RIL. For Amrita Narlikar, bodies that is clearly consonant with the core the WTO’s diminished legitimacy compared ideas of constitutional democracy. with its predecessor, the GATT, suggests that The next two chapters are concerned the increased legalization that accompanied the with different aspects of international crime. creation of the WTO can “trigger processes William Schabas looks at the legal implica- of delegitimation if a legal system upholds rules tions of attempts since 1945 to expand what that are perceived to be poorly negotiated.” is encompassed under the term “interna- Her careful analysis identifies several distinct tional crime.” These have included arguments reasons for this, including perceptions of lack put before the UN’s International Law of transparency and unfairness by developing Commission and elsewhere to add piracy, countries which the Doha Round – sup- the slave trade, traffic in women and chil- posedly focusing on development issues – has dren, apartheid, colonialism, counterfeiting, tended to highlight rather than resolve. She 6 9780415418768_4_000.qxd 26/11/2008 02:34PM Page 7

INTRODUCTION

argues that there is a need to ask fundamental right to culture has emerged in recent discourse questions about whether the WTO is truly as the primary legal and political strategy for fit for purpose and to engage in a process of making rights claims on behalf of indigenous rethinking and renegotiation with that in mind. peoples. She examines the different ways in Obiora Okafor presents a far reaching crit- which the right to culture has been invoked, ical review of the international human rights many of which she sees as relying on “overly discipline, in particular its attainments, but also stereotyped and essentialized ideas of indi- the “eclipses that trouble it and the bouts of genous culture.” While acknowledging the disciplinary renewal that it has experienced from power of a rights package that, in its most time to time.” He is especially concerned to radical form, combines heritage, land and identify deficiencies arising from the tendency economic development, she argues that to see western states as the sole originators of there are also weaknesses arising from the human rights as well as their chief practitioners, tendency to use such claims as a defense mech- with Third World countries mainly regarded anism, and she calls for greater reflexivity as part of the problem rather than solution. among activists. Like Narlikar, he calls for a wide-ranging cross- Modern international refugee law com- cultural dialogue with a view to engaging in menced with the need to respond to mass a new process of renewal but he remains pes- population displacement in Europe at the end simistic about the prospects for the kind of of the Second World War and the beginning “adequate and sustained transformation” that he of the cold war. The underlying perspect- seeks. Ikechi Mgbeoji adopts a similar start- ives of the post-war legal regime continued ing point in his discussion of the “inability of to prevail, including their emphasis on states contemporary African states to internalize some and international governmental organizations. of the key doctrines of intellectual property As Hélène Lambert argues here, this structure rights (IPRs) regimes,” which he attributes has long ceased to be appropriate to a world to the colonial roots of IPRs regimes in where most refugees come from developing African states and the Eurocentric philosoph- countries involved in internal or interstate con- ies underpinning IPRs regimes. After briefly flict. She calls for a focus on two emerging reviewing the history of patent law from its approaches: transnational and participatory, origins in medieval Italy, he develops a series each of which originates in liberal theories of of carefully argued points about the inap- international law and stresses the need for propriateness of IPRs regimes for contem- greater involvement of refugees themselves and porary Africa. For example, many biological non-western countries in discussions based on resources such as varieties of rice and other deliberative democracy rather than compet- plants are the result of incremental and itive self-interest: in essence the same call for collective inventiveness over many years in greater empowerment of victims that others rural economies in Africa and elsewhere but in this section have also made. cannot be accommodated by patent laws that The issue that, more than any other, en- cater for the individualistic assumptions of capsulates all the difficulties and opportunities western capitalism. African states he sees as raised in the handbook may be summarized passive recipients of laws and norms, which by the term “sustainable development.” The in his view need reappraising to assess their simplest definition of this is that it consists of relative costs and benefits. “development that meets the needs of the pre- Indigenous peoples were early victims sent without compromising the ability of future both of colonialism and of attempts to ration- generations to meet their own needs” – but alize their deprivation of rights through inevitably this raises many more questions than various international legal formulations. it answers, especially in the context of the Karen Engle considers the way in which the dilemmas posed by the growing concern 7 9780415418768_4_000.qxd 26/11/2008 02:34PM Page 8

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with climate change. If global warming has many international lawyers feel vis-à-vis been caused to a significant extent by the their domestic counterparts because of IL’s lack industrialization and consequent consumption of an effective system of enforcement of its patterns of the wealthy west, how can it be rules. A more recent concern is whether the possible for the two billion peoples of the fragmentation of IL into distinct but separate rapidly developing India and China to aspire regimes raises the related issue of whether there to anything like those levels – let alone the is a unitary system of IL: another requirement rest of the Third World? But how, in fair- that some would have for “true law.” As ness, can such prosperity be denied them? And Bianchi points out, theoretical discourse has how, in an anarchical international society also become fragmented and while this has of sovereign states can an effective and pow- some strengths in terms of intellectual rich- erful legal regime be established to imple- ness, it does not meet the need for an agreed ment the changes necessary to prevent global theoretical response to such fundamental catastrophe while also ensuring a more equit- uncertainties about IL. able distribution of the world’s wealth? While the contributions to the handbook Marie-Claire Cordonier Segger and Markus represent several distinct perspectives on such Gehring investigate two crucial aspects of these issues, it is, nonetheless, possible to draw from questions. Cordonier Segger analyzes the them at least the basis of a coherent intellec- normative status of sustainable development. tual framework to inform future research and She considers the emergence of the concept perhaps form the foundation of future the- from the 1960s and attempts to give it legal oretical development. Four key aspects of such form. She uses ICJ cases and other evidence a framework may be identified: to argue that there are three broad views of the legal status of sustainable development: the 1 The nature of the international community. first seeing it as a new customary principle, The aphorism ubi societas ibi lex is the the second as a policy objective of treaties, most appropriate starting point. The the third as a kind of “meta-principle,” state is simply one form of society or exerting “a certain pull between conflicting community, one characterized by a international norms relating to environ- central authority possessing the means mental protection, social development and to enforce compliance with its rules. economic growth.” Gehring looks at the key But any social interaction requires rules case of trade law, where advocates of free trade and the more complex the interaction as an aspect of more general economic liber- the more sophisticated the system of alization are involved in an ongoing debate rules must be. The international com- with those arguing that unrestrained free munity – which contains many non- trade has serious environmental consequences state as well as state actors, as several of and those wishing to prioritize the needs of our contributors have pointed out – developing countries. He explores the issues may, literally, be an anarchy in one sense that have emerged in the recent Doha devel- of the word by virtue of its absence of opment agenda of trade negotiations, as well government but it has never been an as the way the concept of sustainable devel- anarchy in the other sense of the word: opment was interpreted and applied in three chaos. Like any community it is rule specific WTO disputes. bound – increasingly so as its interac- Andrea Bianchi’s concluding chapter tion becomes more complex. looks at the challenges ahead for international 2 The relationship between laws and norms. law arising from the issues raised in this Laws derive ultimately from a prevail- handbook. Many of these stem from what ing normative consensus in the society Bianchi refers to as the “inferiority complex” to which they apply. As has been very 8 9780415418768_4_000.qxd 26/11/2008 02:34PM Page 9

INTRODUCTION

apparent in all of the contributions to acceptance by the members of the the handbook, international society society of the legitimacy and value of has an increasingly powerful normative the laws in question. There are also basis that goes well beyond the tradi- many sanctions – such as incurring tional norms of sovereignty and non- shame, dishonor or a reputation as intervention that lie at the root of dishonest or unreliable – that may be much earlier IL. Some would see in brought to bear against lawbreakers this process the building blocks of apart from punishments imposed by an emerging constitutional order but courts of law. even without some such state-like 4 Participation. Effectiveness of this structure emerging, it is possible to con- broader social kind also depends on the ceive of many other ways in which degree to which those to whom the international norms can become insti- rules apply feel a sense of ownership of tutionalized into well-understood and and involvement in the processes of rule accepted legal regimes. creation and implementation. As sev- 3 Effectiveness. A coercive enforcement eral contributors have pointed out, this structure is not an absolute essential for is a major problem with many key areas a legal regime to be effective. Indeed, of IL that can best be met by develop- even in societies where a regime has ing new and far reaching forms of dia- the power to enforce its will, true logue embracing many actors, state effectiveness may depend as much on and non-state, rich and poor.

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Section I The nature of international law 9780415418768_4_001.qxd 26/11/2008 02:35PM Page 12 9780415418768_4_001.qxd 26/11/2008 02:35PM Page 13

1 International law and international relations scholarship

Robert J. Beck

This chapter addresses four crucial and related ques- Kenneth Abbott argued that the “analytical tions. First, how far have the disciplines of inter- approaches, insights and techniques of mod- national law (IL) and international relations (IR) ern IR theory” presented an “opportunity to progressed along the path of cooperation charted nearly integrate IL and IR” (1989: 340). Four years two decades ago by such celebrated scholars as later, Anne-Marie Slaughter averred in an Kenneth Abbott and Anne-Marie Slaughter? award-winning essay:3 “Just as constitutional Second, what theoretical approaches from IL and lawyers study political theory, and political the- IR have been most effectively exploited by inter- orists inquire into the nature and substance disciplinarians? Third, what substantive questions of constitutions, so too should disciplines that seem to have been most productively addressed in study the laws of state behavior [IL and IR] an interdisciplinary context? Finally, what lies ahead seek to learn from one another” (Slaughter for IL/IR interdisciplinarity? Burley 1993: 205). But just how far have the To help answer these questions, the chapter brieﬂy two disciplines progressed along the path of highlights major developments in the interdisciplinary cooperation charted nearly two decades ago4 literature, identifying key books, edited volumes, by these celebrated scholars? What theoret- articles, and special issues of journals. In addition, ical approaches from IL and IR have been most it reviews how scholars of IL and IR have them- effectively exploited by interdisciplinarians? selves characterized the current state of affairs. It What substantive questions seem to have also offers important insights into the nature and been most productively addressed in an inter- challenges of the interdisciplinary enterprise. disciplinary context? And what lies ahead for IL/IR interdisciplinarity? This chapter will Perhaps not coincidentally, with the end of address these four crucial and related questions the cold war came increasing calls by scholars in turn.5 for collaboration between the disciplines Before proceeding, however, ﬁve prelim- of international law (IL) and international inary observations may be offered. A 1996 relations (IR).1 “Law” should once again be essay posited that the borders between the taken seriously by political scientists, it was disciplines of international law and interna- contended, while political science methods tional relations were not readily demarcatable might effectively be employed by lawyers. and therefore contestable (Beck 1996: 4). In his seminal 1989 essay,2 for example, This characterization remains accurate today. 13 9780415418768_4_001.qxd 26/11/2008 02:35PM Page 14

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It should be added, however, that the dis- professional schools, thereby eluding straight- cipline with which a given scholar may be forward disciplinary identification.10 associated is also contestable, or at least, Just as scholars’ disciplinary affiliations not always self-evident.6 For how does may be contested, so too one may debate what one decide who constitutes an “international constitutes genuine “interdisciplinary” scholar- relations” or an “international law” scholar? ship. In a 2005 essay, for example, Jan By the highest academic degree that the Klabbers questioned whether the work of scholar has earned? This approach works Martti Koskenniemi, David Kennedy, Gerry reasonably well except for scholars such as Simpson and others writing in the “counter- Craig Barker, Michael Byers, Christine hegemonic” tradition represented “inter- Chinkin, Robyn Eckersley, Vaughan Lowe, disciplinary” or simply international “legal” Kal Raustiala, Anne-Marie Slaughter, scholarship. “Why this need to somehow ele- Chandra Lekha Sriram, Richard Steinberg, vate their work beyond the legal? Why this Stephen Toope, and Edith Brown Weiss, who urge to have it represent something else than hold law degrees7 and doctoral degrees in good legal work?” asked Klabbers (2005: international relations. Or for those includ- 47). Ultimately, to label another’s scholarship ing Charlotte Ku8 who have received their – whether as “interdisciplinary,” as repres- degrees from policy-oriented graduate insti- entative of the IR or IL discipline, or in some tutions such as Tufts University’s Fletcher other fashion – is to some extent intellectu- School or Princeton’s Woodrow Wilson ally presumptuous. Accordingly, the identi- School where “law” figures in the curricu- fication of works here as “interdisciplinary” lum but which have not historically granted is based primarily on their authors’ own law degrees.9 Alternatively, should one sim- characterizations. Where scholars have not ply use the scholar’s current academic home personally described their works as “interdis- as the indicator of disciplinary affiliation? ciplinary,” any judgment of a given work’s This approach, too, works reasonably well interdisciplinary character must inevitably be when a scholar serves exclusively in a “polit- only provisional. ical science” department or “school of law.” One should also appreciate that the schol- But some scholars, including Kenneth arly division in the cold war period between Abbott, Anthony Clark Arend, Kathryn IR and IL was probably never as stark as was Sikkink, and Richard Steinberg hold joint sometimes portrayed then and thereafter. appointments. And how does one charac- At least some international relations scholars terize scholars serving in policy-oriented continued to take “law” seriously,11 while graduate institutions like the Woodrow some international lawyers – perhaps most Wilson School? To be sure, the quality of famously, Louis Henkin12 – called for dialogue interdisciplinary scholarship – and not its with political scientists. Moreover, within the authors’ labels – should be our ultimate con- “English school” of IR,13 there was arguably cern. Even so, for any accurate assessment never an estrangement between IR and IL, of the nature, current status, and trajectory the school’s scholars “embrac[ing] the role of of IL/IR interdisciplinary efforts, the dis- law, rules and norms in international society, ciplinary affiliations of authors should be often proclaiming themselves to be working characterized with as much precision as in a ‘Grotian tradition’.”14 Furthermore, the possible. Moreover, it is instructive to note IL/IR divide was, generally speaking, less pro- – although, on reflection, perhaps to be nounced in the United Kingdom than it was expected – that some of the most well- in the United States,15 and, arguably, remains regarded interdisciplinary scholars hold so today.16 multiple advanced degrees and/or serve in In any discussion of scholarly collaboration multiple departments or in practice-oriented across the “two cultures” of IL and IR (Beck 14 9780415418768_4_001.qxd 26/11/2008 02:35PM Page 15

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1996: 17–19; Keohane 1997), one must also might reflect at least briefly on the potential continue to bear in mind the crucial import- effects of interdisciplinarity on their own dis- ance of language. Although many examples cipline’s standing and distinctive character.23 can certainly be adduced, perhaps nowhere is the difference between the two discourse communities better evinced than in their strik- Progress? ingly different understandings of the word “theory.”17 For IR scholars, at least those work- How far have interdisciplinary efforts ing in the positivist tradition, a “theory” ex- advanced in the years since the first calls plains or predicts; for IL scholars, by contrast, for collaboration by Professors Abbott and a “theory” can connote a social science the- Slaughter? What theoretical approaches from ory per se, a scholarly “approach” like the New IL and IR have been profitably employed Haven school that is not strictly predictive,18 by interdisciplinarians? To help answer these or even merely a novel legal argument.19 questions, this chapter will take two The majority of work on interdisciplin- approaches. First, it will briefly highlight arity is written, naturally, from an advocacy major developments in the interdisciplinary standpoint. This scholarly inclination should literature, identifying key books, edited vol- not obscure our appreciation, however, that umes, articles, and special issues of journals. for all its manifold virtues, interdisciplinarity Next, it will review how scholars of IL and should not be viewed as an end in itself, or IR have themselves characterized the current as inherently preferable to work conducted state of affairs. within a single discipline per se. High-quality interdisciplinary work requires that the Major works scholar know well the literature, language, tools, and methods of the scholar’s own Perhaps the first comprehensive interdis- and another discipline: an impressive back- ciplinary edited volume, International Rules, ground and skill set with which not all was published by Oxford University Press in researchers are adequately endowed. Fur- 1996 (Beck, Arend, and Vander Lugt 1996). thermore, there remains a danger that inter- Rules was arguably most distinctive for its disciplinarity may be embraced merely as a inclusion of full-length archetypal works of fad or as an attempt to gain the respect of IL and IR: from Hugo Grotius to David one’s peers. David Bederman has decried, Kennedy of IL,24 from George Kennan to for example, the “aggressive tendency” on the Robert Keohane of IR.25 Robert Beck’s part of his fellow international lawyers “to introductory chapter proposed a novel two- borrow things from other disciplines and to by-two matrix (empiricist/critical; explan- apply them to their own work . . . part of a atory/prescriptive) for classification of the larger phenomenon in legal academe to disciplines’ various approaches and assessed boost the legitimacy and self-esteem of law the prospects for interdisciplinary collabora- professors in academic settings by constantly tion (Beck 1996). Anthony Clark Arend’s and courageously asserting their interdis- concluding chapter, on which he would ciplinary credentials.”20 For Bederman, there subsequently build, sought to “formulate an is “a profound danger that unbridled inter- analytical approach to international legal disciplinarity will result in law losing any rules” (Arend 1996: 290). status it might aspire to as neutral and objec- In 1998 Anne-Marie Slaughter, Andrew tive, autonomous, and scientific.”21 While Tulumello, and Stepan Wood published Bederman may be unduly pessimistic,22 his “International law and international relations admonition is nevertheless worthy of inter- theory: a new generation of interdisciplin- national lawyers’ attention. IR scholars, too, ary scholarship” in the American Journal of 15 9780415418768_4_001.qxd 26/11/2008 02:35PM Page 16

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International Law. After reviewing recent use Another 1999 work of self-conscious of IR theory by international law scholars interdisciplinarity was Michael Byers’ and vice versa, the essay “explore[d] how IR Custom, Power, and the Power of Rules.28 Here, and IL scholars might collaborate most proﬁt- Byers submitted that the “process” of customary ably in the future,” suggesting a “collabora- international law was a “power-transforming, tive research program” and then offering an and thus power-qualifying, institution” extensive bibliography of nearly 100 works (1999: 33, emphasis added). Sharing with (1998: 383, 385, 393–7). Slaughter and her Arend’s Legal Rules an interest in opinio juris, collaborators submitted that international the work sought to analyze “the effects that lawyers had been able to contribute to IR four principles of international law [jurisdic- theory by analyses of the legal process as a tion, personality, reciprocity, and legitimate causal mechanism, by demonstrating how expectation] have had on applications of legal norms “constructed” the international power by states as those states have sought conceptual system, and by highlighting the to develop, maintain and change a variety of effects of transnational and domestic law. different customary rules” (1999: 50). Byers’ The “joint discipline” they proposed would treatment of “legitimate expectation” was study the design of international processes and arguably a “cornerstone principle” for his regimes, analyze law’s constructive effects, understanding of the international legal sys- describe transformations of structure, and tem, one reminiscent of Kelsen’s analysis of investigate state disaggregation and the international law’s Grundnorm (Barker 2000: embeddedness in domestic societies of inter- 87). Although Custom has been criticized national institutions (369). for failing systematically to test alternative Also in 1998, Arend published the sub- explanations and for selecting cases that sequently much cited “Do legal rules lacked substantial variation, the work has matter?” in the Virginia Journal of International nevertheless been hailed for providing “a Law, extending that analysis in his Legal Rules laudable example of the synergies and and International Society (Arend 1999).26 challenges of conducting research across the Arend’s 1999 book was hailed as “the fullest disciplinary divide.”29 attempt made at interdisciplinary commun- The year 1999 also saw the publication ication between international law doctrine of a special issue in the American Journal of and international relations theory in some International Law: “Symposium on method time” (Bederman 2001a: 498) and as a in international law.” The issue featured “landmark of constructivist political thought” some of the most prominent IL scholars (Schoenbaum 2006: 94). The book whose work drew on or spoke to questions addressed four questions: How are interna- of IR theory, including Kenneth Abbott, tional legal rules distinctive? How does one Hilary Charlesworth, Jeffrey Dunoff, Martti know when an international legal rule exists? Koskenniemi, Mary Ellen O’Connell, Does international law really matter? And what Steven Ratner, Anne-Marie Slaughter, and effect could international politics’ changing Joel Trachtman.30 The volume’s focus was on nature exert on international law? Perhaps practical theories relevant “for lawyers and legal the two most signiﬁcant contributions of scholars facing contemporary issues,” not Arend’s work were his most elaborate articu- “abstract” ones “that explain[ed] the nature lation thus far27 of an “authority control test” of international law” (Ratner and Slaughter for determining the existence of an inter- 1999: 292). The symposium sought to national legal rule (1999: 67–110) and his appraise seven “methods”: legal positivism, use of “constructivist” theory to explain the New Haven school, international legal international law’s effect on state identity and process, critical legal studies, international behavior (124–48). law and international relations, feminist 16 9780415418768_4_001.qxd 26/11/2008 02:35PM Page 17

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jurisprudence, and law and economics.31 further characterized as varying across three Perhaps somewhat strangely for IR readers, dimensions: “the degree to which rules are “international law and international relations” obligatory, the precision of those rules, and the was treated in this AJIL issue as a single delegation of some functions of interpreta- “method.”32 All contributors to the volume tion, monitoring, and implementing to a approached the same contemporary issue, third party” (Goldstein, et al. 2000: 387, em- “the question of individual accountability phasis added). IL scholars had described and for violations of human dignity committed categorized “this ‘move to law,’ ” the volume’s in internal conflict” (Ratner and Slaughter editors contended, but had largely failed to 1999: 294), addressing explicitly or implicitly evaluate or challenge it” (Goldstein, et al. the same core questions.33 Most interesting of 2000: 388). Cynical IL scholars, by way of con- the issue’s collection of essays for interdis- trast, might have been tempted to view the ciplinarians was probably Kenneth Abbott’s 2000 IO issues as merely IR’s rediscovery of essay, “International relations theory, inter- “law” per se or as a slightly revised take on national law, and the regime governing institutionalism. To be sure, as a “collabora- atrocities in internal conflicts.” Here, after tive investigation by neoliberal international emphasizing that IR comprised “several dis- relations scholars and like-minded international tinct theoretical approaches or ‘methods’,” legal theorists” (Reus-Smit 2004b: 11), the Abbott applied each approach – realist, in- volume was criticized by some for its for- stitutionalist, liberal and constructivist – to malistic rationalism.42 the “norms and institutions governing The second especially noteworthy work serious violations of human dignity during of interdisciplinarity published in 2000 was internal conflicts (the ‘atrocities regime’)” The Role of Law in International Politics, a vol- (Abbott K. 1999: 361). ume edited by Michael Byers. The result of If the 1999 AJIL symposium issue featured the British Branch of the International Law a veritable “who’s who” of interdisciplinary- Association’s 1998 conference at Oxford, minded international lawyers, the 2000 issue Role of Law evinced the “maturity of academic of International Organization on “Legalization thinking” that had developed on the volume’s and world politics” returned the favor for subject, providing also a “rare window” IR scholars, featuring (in addition to Anne- into the “self-perception of international Marie Slaughter and Kenneth W. Abbott) lawyers” (Byers 2000: 2–3). Especially such luminaries as: Judith Goldstein, Miles notable was the book’s inclusion of scholars Kahler, Robert O. Keohane, Lisa L. Martin, from Canada, Finland, France, Germany, Andrew Moravcsik, Kathryn Sikkink, Beth Israel, and Switzerland, in addition to those A. Simmons, and Duncan Snidal.34 This issue from Britain and the United States.43 Indeed, of one of IR’s pre-eminent journals offered the volume and the conference that preceded sections on legalization and world politics,35 it constituted a challenge to the assertion of legalization and dispute resolution,36 law and Martti Koskenniemi, one of the volume’s own economic integration,37 legalization in three contributors, that “academic calls to integrate issue areas (international monetary affairs,38 international law and international relations trade,39 and international human rights theory” were “an American crusade.”44 law),40 and concluding remarks.41 The IO Drawing critical attention to IR’s “over- special issue defined “legalization” as a “par- whelmingly rationalist style of analysis” ticular form of institutionalization,” repres- (Hurrell 2000: 329), Byers’ volume added enting “the decision in different issue areas “new voices and ideas to an already lively to impose international legal constraints on discussion” (Byers 2000: 3). Three especially governments” (Goldstein, Kahler, Keohane, insightful essays featured in this excellent and Slaughter 2000: 386). “Legalization” was collection – all of which represented work 17 9780415418768_4_001.qxd 26/11/2008 02:35PM Page 18

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outside the traditional rationalist idiom – intensely complex. IL and IR contributors were: “How do norms matter?” (Kratochwil portrayed hegemony as constrained by the 2000), “Emerging patterns of governance international legal system and variably influ- and international law” (Toope 2000), and enced by an array of actors. “Carl Schmitt, Hans Morgenthau, and the One indicator of scholarly trajectory has image of law in international relations” been the emergence of new journals. In (Koskenniemi 2000).45 2004 the Journal of International Law and Inter- Interdisciplinary scholar46 J. Craig Barker national Relations was introduced.51 Admin- published International Law and International istered by students from the Faculty of Law Relations in 2000. Barker’s introductory text and the Munk Centre for International was arguably the first work suitable for Studies at the University of Toronto, the jour- undergraduates that squarely, and at some nal features in its advisory board a lengthy list length, addressed interdisciplinarity matters, of “A list” interdisciplinarians.52 Over time, taking into account the scholarship of the the JILIR may establish itself as a prominent 1990s.47 Of special note was Chapter 3, venue for interdisciplinary scholarship.53 “International relations perspectives on Nevertheless, it will almost inevitably confront international law,” which reviewed the the general reluctance by IR scholars to sub- recent work of Michael Byers (85–9), mit their work to student-edited publications “transnational legal process” scholar Harold (Beck 1996: 18). Hongju Koh48 (89–92), and Anthony Clark Further compelling evidence that IL/IR Arend (92–4). interdisciplinarity was not solely an American In 2003 Michael Byers and Georg Nolte project, or solely a rationalist project,54 was published their co-edited United States offered by the Politics of International Law, a Hegemony and the Foundations of International 2004 volume published in the Cambridge Law, a collection of essays by international law49 Series in International Relations and edited and international relations scholars50 delib- by Christian Reus-Smit.55 Inspired by a erately drawn from “a range of cultural, small research workshop in November 2000 linguistic, and academic backgrounds” (xv). organized at the Australian National The volume was informed by a succession of University by Reus-Smit and Paul Keal, the workshop and conference meetings in 2001 volume advanced a new constructivist per- at Duke University and the University of spective on the politics of international law.56 Göttingen. With an introduction by Byers It reconceived “politics” as “interstitial,” a field and conclusion by Nolte, the explicitly of human action standing at the intersection interdisciplinary collection featured six sub- of issues of identity, purpose, ethics, and stantive sections on international community strategy. It defined “law” as a “historically (Kwakwa 2003; Paulus 2003), sovereign contingent institutional practice and pro- equality (Cosnard 2003; Krisch 2003), the cess,” characterizing the relationship between use of force (Kohen 2003; Roth 2003), politics and law as “reciprocally implicated” customary international law (Skordas 2003; (Reus-Smit 2004c: 290). The work featured Toope 2003), the law of treaties (Klein case studies by both IR57 and IL58 scholars 2003; Redgwell 2003), and compliance (Scott on the use of force (Kritsiotis 2004), climate 2003; Stoll 2003), with associated comment- change (Eckersley 2004), landmines (Price aries offered by highly distinguished scholars. 2004), migrant rights (Gurowitz 2004), the Exploring whether, and how, current U.S. International Criminal Court (Wippman predominance might be leading to “foun- 2004), the Kosovo bombing campaign dational change” in the international legal (Wheeler 2004), international financial insti- system, the work substantiated American tutions (Anghie 2004), and global governance hegemonic influence, characterizing it as (Sandholtz and Sweet 2004). 18 9780415418768_4_001.qxd 26/11/2008 02:35PM Page 19

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A second noteworthy 2004 volume “limits to what treaties can achieve” (225). was edited by Israel-based professors Eyal Rejecting the arguments, respectively, of Benvenisti and Moshe Hirsch, The Impact of Harold Koh,67 Louis Henkin,68 and Thomas International Law on International Cooperation: Franck,69 Goldsmith and Posner concluded that Theoretical Perspectives.59 A compilation of “the best explanation for when and why states papers presented at a June 2001 conference comply with international law is not that states convened at the Hebrew University of have internalized international law, or have Jerusalem Faculty of Law,60 the volume a habit of complying with it, or are drawn by included works by prominent IR61 and IL62 its moral pull, but simply that states act out scholars from schools in the United States and of self-interest” (225). Controversial to some Israel, including interdisciplinarians Kenneth would be Goldsmith and Posner’s flexible con- Abbott and Anne-Marie Slaughter. Impact ception of state “interest” and their a priori sought to enhance understandings of the rejection of international legal compliance influences of norms and international insti- as a state preference in interest calculations tutions on states’ incentives to cooperate on (2005: 9). such issues as trade and the environment. The In 2005, Yale Law School’s Oona Anne volume’s contributions adopted two different Hathaway and Harold Koh published approaches. One focused on “the constitu- Foundations of International Law and Politics. tive elements of the international legal order, Featuring excerpts from much of the most including customary international law, soft law, prominent classic and more recent scholar- and framework conventions” (Benvenisti ship,70 with supplemental “Notes” and and Hirsch 2004b: 1) and on other state incen- “Comments” sections, the compilation tives. The second approach closely examined seems likely to become a standard text for the international trade and environmental law school courses addressing the politics of protection areas. international law. The editors sought to “lay Attracting significant attention in 2005 out several of the most central and current the- was The Limits of International Law by Jack L. oretical approaches found in international Goldsmith and Eric A. Posner.63 A ration- law and international relations scholarship, with alist, statist account of law, this “rational an eye toward creating a common framework choice” work64 evinced a relatively strong upon which both sets of scholars can build” skepticism about international law’s efficacy. and to “offer a series of practical applications In their integration and extension of a suc- to spark discussion and debate” (2005: iii). cession of seven prior law review articles,65 The book’s first seven sections presented the authors advanced an “instrumentalist” “interest-based” approaches (realism, institu- argument reminiscent of realist IR thinking: tionalism, liberal theory) and “norms-based” rational states pursue their own interests, ones (constructivism, fairness/legitimacy, with legal rhetoric often masking the under- legal process); the final six highlighted appli- lying motives of states and their leaders.66 cations of the theories (human rights, the Goldsmith and Posner parted company environment, trade, humanitarian interven- somewhat with realists, however, refusing to tion, international criminal law, and war). make “strong assumptions about the content International Law and International Relations of state interests” and assuming that such by Beth A. Simmons and Richard A. interests “could vary by context” (2005: Steinberg was published in 2006. This work 6). While conceding that international law – edited, respectively, by a Harvard Professor was “a real phenomenon,” Goldsmith and of Government and a UCLA professor of law Posner nevertheless submitted that inter- – featured what essentially constituted a national law scholars had “exaggerated its “greatest hits” collection of 26 excerpted arti- power and significance” and that there were cles on regimes, institutions, norms, and law 19 9780415418768_4_001.qxd 26/11/2008 02:35PM Page 20

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from the venerable international relations inspired by a series of four Social Science journal, International Organization. The work Research Council-sponsored workshops in included dedicated sections on international 2002 and 2003 of IL scholars,81 IR scholars,82 regimes theory (Keohane 1982; Krasner and practitioners.83 The work focused on four 1982), commitment and compliance (Chayes clusters of policy challenges: small arms and and Chayes 1993; Downs, Rocke, and light weapons (Koh 2007; Muggah 2007; Barsoom 1996; Gaubatz 1996), legalization and Reno 2007), terrorism (Adamson 2007; its limits,71 international law and international O’Connell 2007; Simpson and Wheeler norms ( Jackson 1987; Legro 1997; Zacher 2007; Ward 2007), internally displaced per- 2001), treaty design and dynamics (Diehl, sons (Abbott 2007; Deng 2007), and inter- Ku, and Zamora 2003; Koremenos 2001; national criminal accountability (Lutz 2007b; Lipson 1991; Smith 2000; Wendt 2001), law Morris 2007; Orentlicher 2007; Sadat 2007; and legal institutions (Garrett, Kelemen, and Sriram and Mahmoud 2007). Offering four Schultz 1998; Slaughter Burley and Mattli broad, synthetic essays on the IL/IR relation- 1993), and other substantive areas of inter- ship (Dias 2007; Finnemore 2007; Raffo, national law: security,72 trade,73 money,74 war Sriram, Spiro and Biersteker 2007; Spiro crimes,75 human rights,76 the environment,77 2007), the collection was especially notable and intellectual property.78 If Hathaway and in its concern for international “practice,” and Koh’s seems likely to become a standard text its juxtaposition of theoretical and practice- for law schools, so Simmons and Steinberg’s oriented essays. seems likely for graduate programs in IR. How have scholars of IL and IR charac- A second IL/IR Cambridge University terized the current state of affairs? Press publication from 2006 was Thomas J. The self-consciously interdisciplinary Schoenbaum’s International Relations – The Path scholarship of the past decade or so has thus Not Taken: Using International Law to Promote far generated at least: four prominent mono- World Peace and Security.79 Arguing that graphs (Arend 1999; Byers 1999; Goldsmith “international law and international institu- and Posner 2005; Schoenbaum 2006); ﬁve tions must be the focal points of foreign pol- edited collections of scholarly conference icy” (vii), Schoenbaum sought to move U.S. papers (Benvenisti and Hirsch 2004a; policymakers away from unilateralism and Biersteker, Spiro, Sriram, and Raffo 2007; toward a reassertion of constructive leader- Byers 2000; Byers and Nolte 2003; Reus-Smit ship in the international legal and institutional 2004a); three compendium volumes (Beck, realms (xiv, 33, 276). The Path Not Taken Arend, and Vander Lugt 1996; Hathaway and reviewed and modestly engaged the theoret- Koh 2005; Simmons and Steinberg 2006); ical literatures of the international law and the one undergraduate textbook (Barker 2000); contemporary international relations (IR) one special symposium issue of the American disciplines: realism, neorealism, game theory, Journal of International Law (1999); one special functionalism, neofunctionalism, complex issue of International Organization (2000); interdependence, regime theory, construc- scores of journal articles,84 and one new ded- tivism, and the English school (46–9, 56–9). icated interdisciplinary journal ( Journal of It did not, however, offer a sustained, self- International Law and International Relations). consciously “theoretical” argument, in the Over 100 scholars and practitioners based in strictest social scientiﬁc sense of the term.80 at least 10 different countries have been en- Published in 2007 was International Law gaged in this interdisciplinary enterprise. But and International Relations: Bridging Theory how have the interdisciplinarians viewed the and Practice. Edited by Thomas J. Biersteker, statuses of the IL and IR disciplines? And how Peter J. Spiro, Chandra Lekha Sriram, and have they characterized the interrelationship Veronica Raffo, this excellent volume was between the two disciplines? Given the 20 9780415418768_4_001.qxd 26/11/2008 02:35PM Page 21

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number and variety of scholars engaged in plines. Some have described the relationship IL/IR dialogue, it is perhaps not surprising as inevitably intimate, with IR and IL linked that opinions have differed, sometimes “inextricably” (Barker 2000) or “inexor- markedly, on these important questions. ably” (Benvenisti and Hirsch 2004a: 1). In his provocative 2005 essay, “The rel- Others have suggested that scholarly collab- ative autonomy of international law or the oration may have fostered the emergence forgotten politics of interdisciplinarity,” pub- of a “joint discipline.”86 Still others, mean- lished in the inaugural edition of the Journal while, have noted the general ascendance of of International Law and International Relations, IL,87 with some like Peter Spiro having seen Jan Klabbers “deliberately refrain[ed] from international law as elevating in status rela- using the capitals IR, if only to prevent the tive to international relations: “IR and IL are unwarranted reification” of what he contended on intersecting rather than parallel trajecto- was “in reality, a rather incoherent, het- ries: IR on the decline, IL on the rise.”88 erogenous body of scholarship” (Klabbers Whether or not they have accepted the 2005: 36). Indeed, Klabbers submitted that characterization of IR and IL as bona fide “international relations, as a discipline, does disciplines, some scholars have found the not exist and cannot exist, and . . . its most interdisciplinary enterprise in some way troubled enlightened practitioners are fully aware of or problematic. In 2001, for example, David this (without of course, understandably, Bederman compared international law and telling anyone)” (2005: 42). While this par- international relations to “bickering spouses ticular conclusion was surely controversial, in a paradigmatic dysfunctional family” Klabbers’ general line of argument never- (Bederman 2001a: 469). Jan Klabbers sub- theless illuminated a crucial point: Like that sequently dubbed the “call for interdis- of IL, the scholarship of “international ciplinarity . . . curious” and one-sided relations” (capitalized or otherwise) encom- (Klabbers 2005: 44). In his “Introduction” to passes a broad spectrum of scholarly The Politics of International Law, moreover, approaches, the dividing lines between Christian Reus-Smit criticized typical inter- which may often become obscured (Beck disciplinary efforts as insufficiently ambi- 1996: 4). Furthermore, “scholars from both tious, failing generally to question basic IR and IL either may personally reject efforts assumptions: “[F]ew of these bridge-building to categorize them by approach or may exercises start by critically reconsidering effectively elude such categorization because the foundational concepts on which these of the unique natures of their works. To be bridges will be constructed” (Reus-Smit sure, whenever labels are used, the danger 2004b: 2). Perhaps the harshest criticism of exists that they will obscure more than they appeals for IL/IR collaboration was leveled illuminate.”85 Moreover, as Clarence Dias has by Martti Koskiennemi in his 2000 essay, noted, “though we talk of IR and IL as being “Carl Schmitt, Hans Morgenthau, and the ‘fields,’ there are many actors involved in each, image of law in international relations.” For and no one set of actors can lay claim to being Koskenniemi, the call to collaborate consti- the sole/authoritative spokesperson for their tuted an “American crusade . . . an academic field” (Dias 2007: 279). project that [could not] but buttress the Most interdisciplinarians have supported justification of American hegemony in the notion that IR and IL do in fact consti- the world” (Koskenniemi 2000: 29–30). tute authentic disciplines, however much the Certainly, scholars from the United States literature within each of those two disciplines have played very prominent roles in the may be heterogeneous or challenging to post-cold war interdisciplinarity enterprise. characterize. Even so, they have agreed far less Notably, however, researchers from Aus- on the actual relationship between the disci- tralia, Belgium, Canada, Finland, France, 21 9780415418768_4_001.qxd 26/11/2008 02:35PM Page 22

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Germany, Israel, Switzerland, and the United of inquiry has been into international “gov- Kingdom have also proven regular and ernance” and the related, though slightly enthusiastic participants.89 narrower question of international law’s creation/constitution, evolution, and dissemination. Stephen Toope (2000) and Trends in scholarship? Wayne Sandholtz and Alec Stone Sweet (2004), for example, have explored the phe- Self-consciously interdisciplinary scholars nomenon of international “governance,” have focused their attentions on a full range including its modes and mechanisms. Paul of substantive issue areas. Notable works90 since F. Diehl, Charlotte Ku, and Daniel Zamora AJIL’s 1998 publication of the comprehen- have introduced the notions of international sive bibliography by Slaughter, et al. include law’s “operating” and “normative” systems those on: the environment, global resources, and as core elements of a conceptual framework science (Benvenisti 2000; Eckersley 2004; that permits analysis and understanding of Raustiala and Victor 2004; Toope 2000); international legal change (Diehl, Ku, and the global economy, including financial and Zamora 2003; Ku and Diehl 2006). Finally, monetary matters (Anghie 2004; Kwakwa with Sandholtz and Sweet (2004), other 2000; Simmons 2000; Slaughter 2000a); interdisciplinarians – including Richard human rights and international humanitarian law Price (2004) and Eyal Benvenisti and Moshe (Abbott K. 1999; Chinkin 2000; Dunoff and Hirsch (2004a) – have considered the gen- Trachtman 1999; Goldsmith and Posner eral process by which international rules are 2005; Koh 1999; Lutz and Sikkink 2000; produced and modified over time.92 Moravcsik 2000; Morris 2007; Mutua 2000; Many scholars have sought to identify key Price 2004; Redgwell 2003; Simma and actors and elements in the international law- Paulus 1999); trade and development (F. Abbott creating process. Harold Koh, for example, 2000; Downs and Jones 2004; Goldsmith and has depicted a “transnational legal process” Posner 2005; Goldstein and Martin 2000; comprised of “horizontal” and “vertical” Howse 2004; Mavroidis 2004; Milner, dimensions, with roles played by NGOs and Rosendorff, and Mansfield 2004; J.M. Smith civil society networks, committed indi- 2000; Steinberg 2002); security, including viduals, intergovernmental deliberation, and terrorism, small arms, post-atrocity justice, and state governments (Koh 1997a, 2007). In the U.N. Security Council (Adamson 2007; work reminiscent of this, Diane Orentlicher Gowlland-Debbas 2000; Koh 2007; Kohen has considered the relationship between 2003; Kritsiotis 2004; Muggah 2007; the “transnational lawmaking process” and Nolte 2000; O’Connell 2007; Perrin de international law (2007). Christine Chinkin Brichambaut 2000; Reno 2007; Roth 2003; (2000), moreover, has explored the role of Simpson and Wheeler 2007; Sriram 2006; NGO social movements in shaping the Sriram and Mahmoud 2007; Ward 2007; development of rules, while Robert Muggah Wheeler 2004); internal displacement, migration, (2007) has traced the effects of “epistemic and immigration (Bank and Lehmkuhl 2005; communities”93 on international legal and Deng 2007; Gurowitz 2004); territorial disputes regulatory efforts. Anne-Marie Slaughter, (Kacowicz 2004; Zacher 2001); and inter- meanwhile, has considered the significance for national criminality and universality jurisdiction international law of regulatory transgovern- (Lutz 2007b; Orentlicher 2007; Rudolph mental networks (2000a). 2001; Sadat 2007; Wippman 2004). The nature and mechanisms associated Exactly what research questions91 have with customary international law’s emer- inspired IL/IR interdisciplinarians of the last gence have proven areas of particular inter- decade or so? Perhaps the broadest focus est. How do “behavioral regularities” 22 9780415418768_4_001.qxd 26/11/2008 02:35PM Page 23

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associated with customary law arise? Martha Finnemore on the “dysfunctional, (Goldsmith and Posner 1999, 2005: 23–78). even pathological, behavior of international How does one know when a rule has organizations” (1999: 699). acquired the status of customary interna- Still another significant area of inter- tional law? (Arend 1999; Bederman 2001a: disciplinary scholarly inquiry has been into 487–8; Byers 1999; Finnemore and Toope putative or potential changes of international 2001a; Price 2004). What role can/do inter- law’s sources, subjects, and substance, espe- national judges and arbitrators play in cially vis-à-vis the state. Amy Gurowitz advancing international law by “finding” (2004) and David Wippman (2004), for customary international law? (Benvenisti example, have traced international law’s pro- 2004). What role does the United States play gressive “cosmopolitanization.” An entire in the evolution of customary international AJIL symposium issue (1999), meanwhile, law (Toope 2003), and does “hegemonic has addressed how individuals are becoming custom” exist? (Skordas 2003). Scholars have accountable for violations of human dignity wondered, too, about “soft law.” In what ways committed in internal conflict. Michel and by what actors is soft law created?94 Cosnard (2003) and Nico Krisch (2003), The treaty creation process has also moreover, have addressed the nature and attracted notable interdisciplinary intention, implications of “sovereignty equality” in a with important works published by rational- period of U.S. hegemony. Ellen Lutz ists John Setear (1996) and Jack Goldsmith (2007b), Madeline Morris (2007), Leila and Eric Posner (2003, 2005: 83–162) and Sadat (2007), and Diane Orentlicher (2007), by critical constructivist Robyn Eckersley furthermore, have considered what entities (2004). Pierre Klein (2003) has specifically possess lawful jurisdiction over international considered the effects of U.S. predominance criminals, and the basis of that jurisdiction. on the elaboration of treaty regimes and the Interdisciplinarians have scrutinized inter- evolution of the law of treaties. national law not only as an “object” that is As has already been noted, a large number created and influenced by external factors, of scholars have viewed the law creation but also as a “subject” that exerts effects (as process through the particular optic of an “independent” variable, for those work- “legalization.” How should “legalization” ing in a positive social science idiom). In rather be understood? What is its nature and different ways, for example, both Christian significance? Whence and why does it vary Reus-Smit (2004c) and Anne-Marie (1999 IO volume; Abbott and Snidal 2004)? Slaughter (2004a) have considered how law How do domestic actors and domestic poli- has structured or shaped politics. Leila Sadat tics generate demand for legalization (Abbott (2007), among others, has looked at the nar- and Snidal 2000; Kahler 2000b)? Others not rower question of international law’s role in working in the “legalization” idiom per se constituting states. In addition, a number of including Anthony Clark Arend (1996, scholars (Benvenisti 2000; Gurowitz 2004; 1998, 1999) and Michael Byers (1997) have Koh 1999), have explored the relationship nevertheless explored whether a given inter- between international human rights law and national rule’s status of “law” actually mat- domestic politics, including political change. ters. Antony Anghie (2004) and Christian Benvenisti (2004) has sought to demonstrate Reus-Smit (2003), moreover, have asked how customary international law can promote how formal international institutions seek efficiency. Meanwhile, Kenneth Abbott, to legitimize themselves and why states view Duncan Snidal, and Robyn Eckersley have particular international institutions as legiti- attempted to ascertain the various roles that mate.95 Anghie’s work was a response in part soft law can play (Abbott 2007; Abbott and to that of constructivists Michael Barnett and Snidal 2000, 2004; Eckersley 2004). 23 9780415418768_4_001.qxd 26/11/2008 02:35PM Page 24

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Law’s effects on cooperation and compli- commentary97 that specifically addressed ance, of course, have provided perennial various implications of United States hege- questions for IL and IR scholars, interdiscip- mony for the “foundations” of international linary and otherwise.96 The entire interdis- law (2003). Robyn Eckersley, moreover, has ciplinary volume edited by Benvenisti and viewed U.S. behavior associated with the Hirsch (2004a), for example, considered Climate Change Treaty through a critical how international law and institutions constructivist lens (2004). Contending that affected state cooperation – with a special “international law and international insti- emphasis on the environment and trade. tutions must be the focal points of foreign Within that work, George Downs and policy” (2006: vii), meanwhile, Thomas Michael Jones (2004), Edith Brown Weiss Schoenbaum has sought to return U.S. (2004), and Arie Kacowicz (2004) each leaders to multilateralism and constructive addressed the general matter of state com- engagement in the international legal and insti- pliance. Downs and Jones (2004) asked: tutional realms (2006: xiv, 33, 276). Gerry What influence does state “reputation” have Simpson and Nicholas Wheeler, further- on compliance? Can states have multiple more, have asked whether the Bush admin- reputations? Finally, Moshe Hirsch (2004) istration was seeking to create a new legal reflected on whether compliance could be basis for the use of force (2007). Finally, Peter enhanced or lessened by globalization. In the Spiro has proposed a new “theory of liberal volume edited by Byers and Nolte, moreover, transnationalism” to help explain how inter- both Scott (2003) and Stoll (2003) explored national law might be incorporated into U.S. legal compliance within an international law (2007). setting of predominant power(s). Aside from a general scholarly willing- As a discipline, international law has tradi- ness to address a wide array of subjects tionally taken words very seriously, with the and research questions, what patterns may texts of treaties, judicial decisions, and formal be discerned in the recent efforts of inter- negotiating records often assiduously parsed. disciplinarians? Let us consider here four Interdisciplinary scholars, particularly those noteworthy trends in turn. of a constructivist or otherwise critical ori- First, irrespective of method, a significant entation, have often shared this special number of interdisciplinary scholars have appreciation of language. In their separate con- begun recently to evince explicit concern for tributions to The Politics of International Law, the practical, “real world”98 dimensions and relev- for example, Robyn Eckersley (2004), Dino ance of their work. This development is strik- Kritsiotis (2004), Richard Price (2004), and ing given the marked preference historically Nicholas Wheeler (2004) have traced how of scholars, especially those in IR, for theory rhetorical/discursive practices constitute over praxis. Martha Finnemore lamented in legal (and political) practice. Similarly, in 2007 that: “[U]nderstanding what ...prac- their contributions to the International Law and titioners do and how their efforts succeed or International Relations edited volume, Gerry fail should be central for IR and IL as aca- Simpson and Nicholas Wheeler (2007) and demic disciplines, but in fact has not been so” Mary Ellen O’Connell (2007) have explored (268). While a practical policy/practitioner how legal discourse has been used as a tool orientation surely has not been manifested by state governments. regularly, it nevertheless conspicuously The relationship to international law of a informed the high-profile “Appraising the particular state – the United States – has drawn methods” AJIL review essay of Ratner and special scholarly scrutiny. As already noted, Slaughter (1999) and the entire symposium Michael Byers and Georg Nolte published volume in which it appeared, the conference- an excellent collection of essays and expert based volume of Benvenisti and Hirsch 24 9780415418768_4_001.qxd 26/11/2008 02:35PM Page 25

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(2004), and also the workshop series-based Slaughter, et al. 1998; Slaughter Burley volume of Biersteker, Spiro, Sriram, and 1993; 2000 IO special issue on legalization), a Raffo (2007).99 An associated development significant number of scholars – interdiscip- has been the “growing and significant genre linary and otherwise – have moved in new of ‘participant–observer’ analyses of inter- theoretical directions.103 Some, for example, national governance” (Abbott 2007: 166). have come to embrace what A. Claire Cutler Possibly the best example of that genre was dubbed “unconventional” approaches to inter- the provocative account of the U.N.’s pro- national law (2002). Albeit of many varieties, foundly deficient response to the 1994 these approaches nevertheless generally Rwanda tragedy, Eyewitness to a Genocide reject formalistic conceptions of law, a pre- (2002), by constructivist scholar Michael occupation with the “state” as unitary, Barnett.100 monolithic source and subject of law,104 and Second, and in a perhaps related develop- a view of law as autonomous, neutral, and ment, interdisciplinary scholars have started objective.105 While not responding directly to step away somewhat from abstract theory and to Cutler per se, the constructivist scholar from foundational questions such as whether Martha Finnemore nevertheless highlighted law genuinely “matters.”101 In the introduc- in a 2007 essay numerous “grounds for col- tion to their 2006 compendium volume, laboration” between IL and IR that were for example, Beth Simmons and Richard reminiscent of, and to a large extent consis- Steinberg noted that: “[I]ncreasingly content with, such unconventional approaches. temporary IL/IR research organizes less Here, Finnemore endorsed research into: the around abstract theoretical debates and more nature and dynamics of state, individual, and around particular methods and concepts group identities (268–9); the impact of that may be seen as hybrids of the main “world culture” on law and politics (269); approaches.” Simmons and Steinberg found law’s contestation and creation “by people an increasingly “conscious engagement working outside government and formal across meta-theories, with a focus on mid-level legal structures” (270); the social context of analysis of international legal and political law (270–72); and non-state actors (272–5). developments using hybrid theories and Surely, international law-oriented work in powerful methods to test those theories” both “conventional” and “critical” construc- (2006: xxxiv). Meanwhile, Veronica Raffo and tivist (Hopf 1998) theory would seem most her colleagues observed in 2007 how some promising.106 scholars had “begun to move past debates Fourth, lamentably, interdisciplinary about the relevance or status of international scholarship thus far has too often proved law, to queries or arguments about how it func- to be insufficiently “dialogic” in character.107 tions in international life.”102 The “emergent Instead, scholars commonly have failed to work devoted to the so-called legalization of exploit the literature of both disciplines, international politics,” for example, “focuses have simply imported a theory or approach less on debates about whether or not inter- from another discipline (typically IR) into their national law is important in international own, or have merely juxtaposed their own politics and more on explaining how legal- discipline’s theories with those of the other ized institutional arrangements come to be” discipline.108 In 1999, for example, Kenneth (Raffo, et al. 2007: 5–6). Abbott noted how “relatively little IR Third, despite much prominent interna- literature” had analyzed the “atrocities tional law-oriented work that has been done regime,” insisting that “interdisciplinary cross- in the traditional statist, rationalist idiom fertilization must flow both ways” (364). Jan (often explicitly neoliberal – e.g. Abbott 1989; Klabbers averred in 2005 that “lawyers [had Goldsmith and Posner 2005; Keohane 1997; been] asked to take international relations 25 9780415418768_4_001.qxd 26/11/2008 02:35PM Page 26

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seriously, while the international relations Oona Hathaway and Harold Koh submitted: people [had] refuse[d], more often than not, to “Progress in generating interdisciplinary dig into legal thought” (2005: 44). Similarly, dialogue between law and political science in 2006 Chandra Lekha Sriram observed that has been slow but steady on both sides . . . “attempts to link the disciplines have often Today, international law and international involved transferring theories of IR whole- relations are increasingly viewed as a single sale to apply to ‘problems’ of international discipline. Yet significant differences re- law. This results less in serious dialogue than main.”110 In their essay in the 1999 American in a largely unidirectional application” (467). Journal of International Law special issue, Sriram regretted that there had been “precious moreover, Stephen Ratner and Anne-Marie few attempts to apply international legal Slaughter cautioned: “[W]e do not wish to theories or methods to contemporary prob- suggest that international law has witnessed lems in IR journals; such discussions remain an inevitable march of progress in the devel- confined to IL journals” (2006: 470–71). opment of new theories and methods.”111 Meanwhile, Hathaway and Koh reported Almost a decade later, Gerry Simpson and the tendency of “most existing efforts to Nicholas Wheeler sketched “two possible examine international law and international futures for the IR-IL conversation.” Under relations literature [by] plac[ing] the two their pessimistic scenario, in the wake of side-by-side, thus emphasizing the discip- the Bush doctrine and American exception- linary divide” (2005: 2). alism, “we might be looking at a freezing The lack thus far of routine, sustained, and of relations . . . after a decade or so of multi- robust dialogue arguably reflects the stubborn lateralism, of institutional proliferation, of leg- persistence of “two cultures” in the scholarly alization, and of cross-disciplinary ardor.”112 realm and other inherent barriers confronted Under their preferred scenario, international by prospective interdisciplinarians (Beck lawyers might “finally recognize the ways 1996: 17–18; Bank and Lehmkuhl 2005: in which inequality and ‘the exception’ are 166–71). found in the very origins of their field, while IR scholars [might] begin (and in some cases continue) to acknowledge the distinctiveness What lies ahead? (not just another regime), power (not just Many of interdisciplinarity’s advocates have material), and constituting power (circum- observed with satisfaction the developments scribing how we speak and understand) of of the past two decades, while remaining law” (Simpson and Wheeler 2007: 124). guarded about the long-term prospects – What, then, lies ahead? Prediction, whe- conceding that challenges remain, progress is ther of political, legal, or scholarly trends, is not inevitable, and a return to disciplinary insu- an intrinsically perilous exercise. Even so, larity is still possible. As Veronica Raffo and assuming – as many observers do – that the her colleagues noted in the introduction to IL/IR collaborative enterprise will endure in their 2007 volume: “[T]he fields of interna- some form, at least three conclusions about tional law and international relations have its future seem reasonably safe.113 become increasingly intertwined in recent First, it appears highly likely that interdis- years, beginning to reverse a long tradition ciplinary scholars will continue to appreciate of viewing them as separate areas . . . Myriad the vital roles of non-state actors and processes, per- books and articles have been devoted to the haps increasingly so.114 In a globalized world subject, seeking to identify the gap between characterized by terrorism, transborder flows international law and international relations of small arms, massive internal displacements . . . [b]ut more remains to be done.”109 of populations, international criminality, Similarly, in their co-edited compendium, large-scale human rights abuses, and other 26 9780415418768_4_001.qxd 26/11/2008 02:35PM Page 27

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maladies, “a growing number of actors and disciplinarians of various stripes have already analysts are beginning to see the state as a prob- begun to explore globalization’s manifold lem, not as the sole source of effective solu- implications. Harold Koh, for example, has tions.”115 Furthermore, as Chandra Lekha sketched a “transnational legal process” Sriram has observed, “overreliance upon under which “those seeking to create and state-centric modes of analysis common to embed certain . . . [legal] principles into many sets of IR theories and to some tradi- international and domestic law . . . promote tional approaches to international law” transnational interactions, that generate legal obscures “the range of actors in contempor- interpretations, that can in turn be internalized ary law and politics” (2006: 467–8). It may into the domestic law of even skeptical well be, moreover, that the global system will nation-states” (Koh 2007: 62, emphasis in increasingly evince a “cosmopolitanisation” of original). Various scholars working in the international law – “the movement away from rationalist “legalization” idiom (e.g. Abbott a legal system in which states are the sole and Snidal 2000; Kahler 2000b), meanwhile, subjects, and in which the domestic is tightly have sought to understand how domestic actors quarantined from the international, toward and domestic politics generate demand for a transnational legal order that grants legal international rules that are obligatory (legally rights and agency to individuals and erodes binding), precise, and admitting of delegation (i.e. the traditional boundary between inside that feature authorized third-party mechanisms and outside.”116 In an environment where for interpretation and application). Con- non-state actors and processes have already structivists, too, have studied internationally proven manifestly consequential, construc- relevant phenomena and actors operating tivist,117 liberal,118 and “transnational legal within the domestic realm, including the process”119 approaches should be particularly formation of group and state “identity” and attractive to interdisciplinarians. Surely, the operation of activists and norm entre- the recent attention paid to “transnational preneurs, people often “working outside advocacy networks” (Keck and Sikkink government and formal legal structures,” 1998), “transnational moral entrepreneurs” domestic or otherwise (Finnemore 2007: (Andreas and Nadelmann 2006; cf. Finne- 271–72, 270). Liberal IR theorists, of course, more and Sikkink 1998; Nadelmann 1990), have been especially mindful of the domestic “epistemic communities” (Adler and Haas space: advocating a “bottom up” view, em- 1992; Eyre and Suchman 1996; Haas 1992; phasizing interactions between individuals Muggah 2007), and “transnational judicial dia- operating in the society and the state, and logue” (Orentlicher 2007; Slaughter 2000c) contending that “domestic regime type” has already yielded important insights.120 affects state behavior (Slaughter 2000b, Even so, as Martha Finnemore has noted, 2004a). Ultimately, given the signiﬁcant scholars will ultimately “need better theoret- illumination it has already provided, this ical tools for understanding and prescribing domestic/international orientation of many action” for non-state actors (2007: 273). interdisciplinary scholars appears unlikely Second, reﬂecting an increased scholarly soon to end. appreciation for non-state actors and processes, Third, although complementarities be- the relationship between the domestic and inter- tween the two surely exist,122 interdisciplinary national realms – including their legal and scholarship nevertheless seems liable to remain sep- political dimensions – seems apt to garner arated into rationalist and sociological/constructivist sustained, if not increased, interdisciplinary camps. Eyal Benvenisti and Moshe Hirsch have attention.121 Globalization has challenged observed that the “distinction between ratio- “borders” of all types, material and nal choice and sociological analyses constitutes ideational. Moreover, as we have seen, inter- one of the major dividing lines in social 27 9780415418768_4_001.qxd 26/11/2008 02:35PM Page 28

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sciences scholarship” in general (Benvenisti [Author note: An early version of this chap- and Hirsch 2004b: 4). So, too, does a ter was presented at “America, human rights rationalist–sociological division specifically and the world,” an interdisciplinary confer- mark IL/IR scholarship, with constructivism ence convened by Marquette University’s currently representing the most prominent Human Rights Initiative in Milwaukee, sociological approach. The divide reflects Wisconsin, September 27–29, 2007.] primarily a fundamental difference of opinion among scholars regarding the most effective “lens” through which to view beha- Notes vior and other law-associated phenomena: a “logic of consequences”/instrumental optic or 1 As Martha Finnemore has noted, “[r]eal-world 123 a “logic of appropriateness”/norms one. political changes have reinforced, perhaps even A second significant rationalist– caused, these intellectual shifts” in the IR and sociological/constructivist division exists, IL disciplines (2007: 266). Similarly, Toope too, separating rationalist scholars who reject observes: “[W]ith the failure of international relations to predict, or even explain, the end critical theory from those constructivists of the Cold War, new questions gained cur- 124 who embrace it. Because disagreements on rency, questions more closely allied with the foundational methodological, ontological, historical preoccupations of international and epistemological issues separate rational- law” (2000: 91). See also Raffo, et al. 2007: 6. ists and constructivists, their scholarly divide 2 Suggestive of its influence, Abbott’s essay was tied for first as the “most-cited” article in the exhibits an almost “religious war” or “Mac Yale Journal of International Law over a 25-year vs. PC” quality that makes the breach seem period (Abbott 2000: 273–6). Another early unlikely ever to be effectively bridged. articulation of Abbott’s perspective was pro- “These are differences that make a differ- vided in the American Society of International ence.”125 Even so, the persistence of multiple Law Proceedings (1992). 3 The essay won the Francis Deák Prize for IL/IR perspectives and of the rationalist– 1994, bestowed by the Board of Editors of sociological divide should not ultimately be the American Journal of International Law. viewed as problematic – for genuine inter- 4 When IL began again seriously to be of interdisciplinarity should embrace diversity. est to IR is debatable, with Simmons and It is perhaps fitting now to close this Steinberg suggesting the early 1980s (2006: xxx). Even so, IR work tended to focus more account of the IL/IR scholarly trajectory then on “regimes” or “institutions” and not in the same way in which it commenced – on “law” per se. Arguably, the resurgence of with an invocation of the words of Anne- a focus on law began in the late 1980s and Marie Slaughter. One of the interdisciplin- early 1990s. arity movement’s most indefatigable and 5 For other recent accounts of the nature and status of IL/IR interdisciplinary efforts, compelling advocates, Slaughter reminds see Barker (2000: 70–96); Benvenisti and researchers always to bear in mind the Hirsch (2004b: 1–4); Cutler (2002); Finne- crucial human dimensions and practical more (2007); Goldsmith and Posner (2005: implications of the enterprise: “As a scholar, 14–17); Hathaway and Koh (2005: 1–3, it is relatively easy to survey the literature, 19–25); Kacowicz (2001); Klabbers (2005); Schoenbaum (2006: 54–95); Slaughter the conferences, and the collaborations and (2004a: 16–49); Spiro (2000a: 576–590); and to evaluate the academic value of such cross- Sriram (2006). In “How do norms matter?” fertilization. The real test, however, is the Kratochwil traces how the development world. Both international lawyers and inter- of the IR and IL disciplines reinforced the national relations scholars confront pressing division between international politics and international law (Kratochwil 2000). Also global problems, issues of such urgency and noteworthy is Hurrell 2000. import that lives and lands hang in the bal- 6 Sriram counts Kenneth Abbott among ance” (Slaughter 2004a: 49). “scholars of IR” (2006: 467) though Abbott 28 9780415418768_4_001.qxd 26/11/2008 02:35PM Page 29

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holds a J.D. and until fairly recently taught war period. For more on the approach, see exclusively at a law school. Peter Haas is Arend 1999: 76–86; Beck, Arend, and included as a “legal scholar” by Bederman Vander Lugt 1996: 110–143; and McDougal (2001a: 475), although Haas holds a Ph.D. and and Lasswell 1959. One arguable member of teaches in a political science department. the New Haven school was Richard Falk, who Anthony Clark Arend has also been called an served as a member of the Princeton faculty, IL scholar, despite his Ph.D. and teaching posi- with a joint appointment in the Woodrow tion in a government department. Wilson School of Public International 7 “Law degrees” include: (1) doctor of law Affairs and the Department of Politics be- ( J.D., Juris Doctor), the professional practice tween 1961 and 2001. Falk holds J.S.D. and of law degree in the United States; (2) bach- LL.B. degrees. For some of his cold war era elor of civil law (B.C.L.); (3) bachelor of laws work, see Falk 1983, 1984, and 1987. (LL.B., Legum Baccalaureus), the principal 13 A comprehensive online bibliography of the academic degree in law in the majority of English school is maintained at http://www. common law countries other than the leeds.ac.uk/polis/englishschool/documents. United States – akin to the U.S. J.D.; (4) bach- htm, retrieved from the World Wide Web, elor of jurisprudence (B. Juris), not a September 13, 2007. Prominent English qualification for the professional practice of school works published during the cold war law; (5) the master of laws (LL.M., Legum period include: Bull 1966, Bull 1977, Bull and Magister), an advanced law degree; (6) doc- Watson (eds) 1984, Butterfield and Wight (eds) tor of laws (LL.D., Legum Doctor; or Dr. iur., 1966, Wight 1977, and Wight 1978. The in Germany), a doctorate-level academic English school’s relationship to international degree in law; and (7) doctor of juridical law was also noted in Slaughter, et al. 1998: science (S.J.D.), U.S. degree designed for 372. aspiring legal academics, comparable to the 14 Sriram 2006: 468. See also Hathaway and Koh LL.D. 2005: 22; Raffo, et al. 2007: 5. 8 See Ku, et al. 2001; Diehl, Ku, and Zamora 15 Raffo, et al. 2007: 4; Sriram 2006: 468. 2003; Ku and Diehl 2006. 16 For discussions of the American (i.e. “U.S.”) 9 The Fletcher School began to offer an role in the IR discipline, see Crawford and LL.M. Program in September of 2008. See Jarvis (2001); Hoffmann 1977; Smith 2000. http://fletcher.tufts.edu/llm/default.shtml, Dias argued that “the divide between inter- retrieved from the World Wide Web national relations and international law is October 16, 2007. both tenuous and tendentious. Without inter- 10 Another permutation: Alec Stone Sweet, national law, international relations theory Leitner Professor of Law, Politics and would amount to little more than a constant International Studies at Yale Law School, affirmation that might is right. Without inter- received a Ph.D. in Political Science from the national relations, we would not be able to University of Washington, but does not hold expose instances when international law is an a J.D. per se. instrument of might or to advocate what needs For a comprehensive compilation of to be done to reaffirm the principle right not IL/IR interdisciplinarians, see Appendix. might. Without international relations, our abil- 11 A few prominent examples would include: ity to succeed strategically in developing new Claude (1966), Claude (1988), Forsythe international law, founded on the principle (1972), Joyner (1984), Kratochwil (1989), right not might, would be considerably limited” LeBlanc (1977), LeBlanc (1984), Onuf (Dias 2007: 278, emphasis in original). (1985), Onuf (1989), Young (1972), and 17 For a discussion of “theory” in the context of Young (1986–7). IL/IR interdisciplinarity, see Slaughter 2004a: 12 “[T]he student of law and the student of 17–19. For a similar discussion, addressing also politics . . . purport to be looking at the same the related notion of “method,” see Ratner world from the vantage point of important and Slaughter 1999: 291–93. See also Abbott disciplines. It seems unfortunate, indeed K.W. 1999: 362–3. destructive, that they should not, at the least, 18 See, e.g. Sriram’s recent treatment of legal hear each other” (Henkin 1968: 6). The “New positivism, policy-oriented jurisprudence and Haven school” of “configurative jurisprud- transnational legal process (2006: 471–72). ence” introduced by Harold Lasswell and 19 Slaughter, et al. 1998 identified three ways Myres McDougal in the mid-1940s was in which international lawyers “used” arguably the most interdisciplinary of the cold international relations theory: “(1) to diagnose

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international policy problems and to 29 Cardenas 2000: 148, 149. See also Barker formulate solutions to them; (2) to explain the 2000: 85–9. Klabbers judged Byer’s “(under- function of particular international legal standable) reluctance to make a choice” institutions; and (3) to examine and recon- among specific versions of international rela- ceptualize particular institutions of international tions thought one of the reasons Byers’ work law generally” (Slaughter, et al. 1998: 373). was “less than fully satisfactory” (Klabbers 20 Bederman 2000: 81. Similarly, Spiro argued 2005: 37–8). See also Klabbers 1999. that IL’s “rush to transplant refined ap- 30 The featured articles in the symposium: proaches [e.g. economic, critical, feminist] also Abbott K. (1999); Charlesworth (1999); evidences a persistent inferiority complex on Dunoff and Trachtman (1999); O’Connell the part of international law scholars, a sort (1999); Ratner and Slaughter (1999); Simma of ‘model envy’ ” (Spiro 2000a: 580). and Paulus (1999); Slaughter and Ratner 21 Bederman 2000: 81. Jan Klabbers argues, too, (1999); and Wiessner and Willard (1999). that “while the best international lawyers will Koskenniemi (1999) submitted a lengthy have a working knowledge of neighbouring “letter.” The positivist analysis offered by disciplines including international relations the- Simma and Paulus, and the New Haven ory, they should guard against the risk of doing analysis offered by Wiessner and Willard, merely history, or economics, or ethics, or would likely be of somewhat less interest to international relations, under a thin veneer of IR scholars. international law.” In his view, “international Arguably “IL” scholars: Stephen Ratner, lawyers should not immediately heed to J.D. (Professor of Law, University of the siren song of interdisciplinarity, for Michigan Law School); Bruno Simma (cur- the simple reason that it will not always and rently a judge on the International Court of automatically enable them to come to a Justice and former Dean of the University of better understanding of international law” Munich Faculty of Law), Andreas Paulus (Klabbers 2005: 36). He concludes that “the (Professor of International and Public Law main challenge for the lawyer is . . . to cher- at the University of Göttingen); Siegfried ish and preserve the relative autonomy of the Wiessner, Dr. iur., LL.M. (Professor of Law; law, for a law that has lost its autonomy ceases Founder and Director, LL.M./J.S.D. to be law” (2005: 42). Program in Intercultural Human Rights at St. 22 On the “distinctiveness and independence Thomas University School of Law), Andrew of international law as a discipline for Willard (Senior Research Scholar at Yale Law approaching questions of international rela- School and President of the Policy Sciences tions,” see Ratner and Slaughter 1999: Center), Mary Ellen O’Connell, LL.B., J.D. 298–99. See also Slaughter, et al. 1998: 379. (Robert and Marion Short Professor of Law, 23 As Reus-Smit has observed, “the disciplines University of Notre Dame); Kenneth of International Relations and International Abbott, J.D. (Professor of Law, Willard H. Law have evolved as parallel yet carefully quar- Pedrick Distinguished Research Scholar, antined fields of inquiry, each with its own College of Law, but also Professor of Global account of distinctiveness and autonomy” Studies, School of Global Studies, Arizona (2004b: 1). A call for “disciplined interdis- State University); Hilary Charlesworth, LL.B., ciplinarity” is made in Bank and Lehmkuhl S.J.D. (Professor in RegNet and Director of 2005: 171–72. the Centre for International Governance 24 IL works featured: Acheson (1963a); and Justice, Australian National University); Charlesworth, Chinkin, and Wright (1991); Jeffrey L. Dunoff, J.D., LL.M. (Charles Klein Grotius (1925); Hart (1994); Kelsen Professor of Law and Government and (1942); Kennedy (1988); and McDougal and Director, Institute for International Law and Lasswell (1959). Public Policy at Temple University Beasley 25 IR works featured: Grieco (1988); Hurrell School of Law), Joel P. Trachtman, J.D. (1993); Kennan (1984); Keohane (1988); (Professor of International Law, The Fletcher and Krasner (1982). School); Martti Koskenniemi, LL.B., LL.M., 26 Addressing the same question was LL.D. (Professor of International Law in the Finnemore (2000). University of Helsinki). 27 Arend employed this test for “law” in earlier Holding both J.D. and D.Phil. degrees and works, including Arend and Beck (1993). having served both schools of law and 28 The book built on Byers’ Cambridge Ph.D. policy, Anne-Marie Slaughter eludes ready thesis and his earlier essay, Byers (1995). categorization.

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31 The volume explicitly excluded Roman Ball Eminent Scholar, Florida State Uni- law, canon law, socialist/Soviet law, natural versity, College of Law). law, the comparative method, and function- 35 Abbott, Keohane, Moravcsik, Slaughter, and alism (Ratner and Slaughter 1999: 293). Snidal 2000; Goldstein, et al. 2000. 32 This treatment of IR arguably reflected a trend 36 Abbott and Snidal 2000; Keohane, described by Klabbers: “Interdisciplinarity Moravcsik, and Slaughter 2000. often . . . presumes a flat, one-dimensional 37 F. Abbott 2000; Alter 2000; Kahler 2000a. vision of the discipline-to-relate-with.” He 38 Simmons 2000. warned that “such a one-dimensional view 39 Goldstein and Martin 2000. [would] rarely, if ever, be persuasive” 40 Lutz and Sikkink 2000. (Klabbers 2005: 37). 41 Kahler 2000b. 33 “1. What assumptions does your method 42 A critique of this high-profile volume was make about the nature of international law? offered by Martha Finnemore and Stephen 2. Who are the decision makers under your Toope in their IO essay, “Alternatives to ‘leg- method? 3. How does your approach address alization’: richer views of law and politics” the distinction between lax lata and lex (Finnemore and Toope 2001a). “Narrow ferenda? Is it concerned with only one, both, and stylized frameworks like this one may be or neither? 4. How does it factor in the useful if they provide conceptual clarity and traditional ‘sources’ of law, i.e. prescriptive facilitate operationalization of concepts,” processes? 5. Is your method better at tack- they submitted. Even so, “the empirical ling some subject areas than others, both as applications of legalization . . . suggest the regards the issue noted above and as compared opposite” (2001: 743–4). Finnemore and to other subjects? 6. Why is your method Toope contended that law “in this [legaliza- better than others?” (Ratner and Slaughter tion] view is constraint only: it has no cre- 1999: 298). ative or generative powers in social life. Yet 34 Arguably “IR” scholars: Judith Goldstein, law working in the world constitutes rela- Ph.D. (Professor of Political Science, tionships as much as it delimits acceptable Stanford University); Miles Kahler, Ph.D. behavior” (2001a: 745). (Rohr Professor of Pacific International In 2007 Routledge published Law and Relations at the Graduate School of Legalization in Transnational Relations,amulti- International Relations and Pacific Studies); disciplinary volume (i.e. not strictly a work Robert O. Keohane, Ph.D. (Professor of of IL/IR interdisciplinarity per se) edited International Affairs, Woodrow Wilson by Christian Brütsch and Dirk Lehmkuhl School, Princeton University); Andrew (2007a). Based on a 2002 workshop on Moravcsik, Ph.D. (Professor of Politics and “Legalization” convened in Zurich, the Director of the European Union Program at volume also challenged the rationalist– Princeton University); Duncan Snidal, institutionalist conception of “legalization” Ph.D. (Associate Professor, Department of advanced in the 2000 International Organiza- Political Science, University of Chicago); tion symposium issue. The editors contended Karen J. Alter, Ph.D. (Associate Professor, that “legalization” should be thought of as Department of Political Science, North- “a series of complex transformations of the western University); Beth A. Simmons, structures, institutions and actors that shape Ph.D. (Professor of Government at Harvard international and transnational politics” University); Lisa L. Martin, Ph.D. (Professor (226). They rejected as “misleading” the of Government at Harvard University). depiction of legalization as “a linear devel- Kathryn Sikkink, Ph.D., Arleen C. opment or a general trend,” proposing Carlson Professor of Political Science at the instead that “research should focus on the University of Minnesota, is also a Professor elusive and often contradictory conditions, of Law at the University of Minnesota’s Law patterns and dynamics that determine the School. success, scope and reach of emerging legal and Arguably “IL” scholars: Ellen L. Lutz, law-like arrangements” (226). Proposing a M.A., J.D. (Executive Director of Cultural common, broad, interpretative framework that Survival and former Executive Director of the included “the increase in international law- Center for Human Rights and Conflict making, the variation among legalized and Resolution at Tufts University’s Fletcher legalizing regimes, and the differentiation of School of Law and Diplomacy); and legal and law-like arrangements,” Brütsch and Frederick M. Abbott, J.D., LL.M. (Edward Lehmkuhl sought to test the “usefulness and

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integrative potential” of their framework by Holding both J.D. and Ph.D. degrees inviting scholars with different disciplinary and having served both schools of law and backgrounds – including political science, for- policy, Anne-Marie Slaughter eludes ready cat- est and nature conservation, accounting and egorization. Similarly, Michael Byers serves auditing, criminal law and criminology, and on the Duke Law School Faculty, but holds business administration (but notably, not both Ph.D. and B.C.L. (Bachelor of Civil Law) international law) – to address different degrees. Christine Chinkin of the London aspects of legalization in their respective School of Economics and Political Science fields of expertise (xii–xiii, 226). The collec- holds LL.B., two LL.M., and Ph.D. degrees. tion included essays on “complex legalization” Vaughan Lowe, LL.B., LL.M., Ph.D. is (Brütsch and Lehmkuhl 2007b); “transnational Chichele Professor of Public International Law legalization of accounting” (Wüstemann and and a Fellow of All Souls’ College in the Kierzek 2007); “harmonization of private University of Oxford. Stephen Toope holds commercial law” (Cohen 2007); “money LL.B., B.C.L., and Ph.D. degrees and since laundering and bribery” (Pieth 2007); 2006 has served as President of the Univer- “organic agriculture” (Coleman and Reed sity of British Columbia. He had served as 2007); “emerging transnational regulatory Professor of Law, McGill University. systems” (Meidinger 2007); the function of 44 Koskenniemi 2000: 29. “[T]he particular “global standards” (Arts and Kerwer 2007; combination of a call to increase ‘collabora- Schanze 2007); “legalization and world soci- tion’ between international lawyers and ety theory” (Albert 2007); and “the role of international relations theorists, together the transnational corporation in legalization” with the sociology of the end-of-State (as we (Scherer and Baumann 2007). know it) and the political enthusiasm about 43 Conference participant/volume contributors the spread of ‘liberalism,’ constitutes an aca- included these professors: Stephen Toope demic project that cannot but buttress the (Canada), Martti Koskenniemi (Finland), justification of American hegemony in the Brigitte Stern (France), Friedrich world. This is not because of bad faith or Kratochwil, Georg Nolte (Germany), Eyal conspiracy on anybody’s part. It is the logic Benvenisti (Israel), Vera Gowlland-Debbas of an argument . . . that creates the image of (Switzerland), Philip Allott, Christine law as an instrument for the values (or better, Chinkin, Andrew Hurrell, Vaughan Lowe ‘decisions’) of the powerful that compels the (United Kingdom) and Anne-Marie conclusion” (Koskenniemi 2000: 30). Slaughter (United States). 45 Other essays included: Allott (2000: 69–89); Arguably “IR” scholars: Friedrich Benvenisti (2000: 109–29); Chinkin (2000: Kratochwil, Ph.D. (Chair of International 131–47); Gowlland-Debbas (2000: 277– Relations, European University Institute, 313); Hurrell (2000: 327–47); Kwakwa Political and Social Sciences), Vera (2000: 227–46); Lowe (2000a: 207–26); Gowlland-Debbas, Ph.D. (Professor in the Mutua (2000: 149–75); Nolte (2000: International Law section of the Graduate 315–26); Perrin de Brichambaut (2000: Institute of International Studies, Geneva), 269–313); Slaughter (2000a: 177–205); and Andrew Hurrell, D.Phil. (University Stern (2000: 247–68); and Watts (2000: Lecturer in International Relations, Director 5–16). Hurrell (2000: 327–47). of the Centre of International Studies, 46 Professor of Law at the University of Sussex, Faculty Fellow, Nuffield College, Oxford). Barker holds both LL.B. and Ph.D. degrees. Arguably “IL” scholars: Philip Allott Accordingly, he might be considered an (Reader in International Public Law and a “IL” (or perhaps) “IR” scholar. Fellow of Trinity College, University of 47 Scott (2004a) is another textbook that Cambridge; formerly a legal counselor in addresses issues of interdisciplinarity, albeit the British Foreign and Commonwealth relatively briefly so. Office), Eyal Benvenisti, J.S.D. (Professor 48 For brief synopses of the “transnational legal of Law at Tel Aviv University Faculty of process” approach, see Hathaway and Koh Law), Martti Koskenniemi, LL.B., LL.M., 2005: 190–91, 195–204; Koh 2007: 62; and LL.D. (Professor of International Law in Sriram 2006: 472. the University of Helsinki), Dr. Georg Nolte 49 Arguably “IL” scholars: Georg Nolte; (Professor of Law at the University of Andreas Paulus (Professor of International and Munich), Brigitte Stern (Professor at the Public Law at the University of Göttingen), University of Paris 1 – Panthéon-Sorbonne). Michel Cosnard (Professor of International

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Law, University of Maine – Le Mans, 53 Two especially noteworthy essays from the France), Nico Krisch, Dr. iur. (Lecturer in Law new journal: Klabbers 2005; Simpson 2005. in the Department of Law of the London 54 Reus-Smit (2004b: 11). School of Economics), Marcelo Kohen, 55 For a comparative review of the book, see Ph.D. in Political Science – International Law Sriram 2005. (Professor of International Law at the 56 The contributors to the volume include Graduate Institute of International Studies, both “critical” and “conventional” con- Geneva), Achilles Skordas, Ph.D. in Law structivists. Reus-Smit (2004b: 12). For his (Reader in Law at the University of Bristol constructivist argument, Reus-Smit built School of Law), Pierre Klein (Professor of on his earlier “The strange death of liberal International Law and Director of the international theory” (2001) and “Politics and Centre for International Law, Université international legal obligation” (2003). Libre de Bruxelles), Catherine Redgwell, 57 Arguably “IR” scholars: Dr. Robyn LL.B., M.Sc. (Professor of International Law Eckersley (Senior Lecturer in the Depart- at University College London), and Peter- ment of Political Science at the University of Tobias Stoll (Professor of Law and Managing Melbourne, although she has previously Director, Institute of International Law at served as a public lawyer), Amy Gurowitz, Georg-August-Universität Göttingen). Ph.D. (Lecturer in Political Science at the 50 Arguably IR scholars were: Brad R. Roth, University of California at Berkeley), Ph.D. (Associate Professor in the Depart- Richard Price, Ph.D. (Associate Professor of ment of Political Science at Wayne State Political Science at the University of British University), and Shirley Scott, Ph.D. (Asso- Columbia), Christian Reus-Smit, Ph.D. ciate Professor in International Relations, (Professor and Head of the Department of University of New South Wales). International Relations in the Research Arguably a “practitioner”: Edward School of Pacific and Asian Studies at the Kwakwa, LL.M., J.S.D. (Deputy Legal Australian National University), and Wayne Counsel and Head of the Legal and Sandholtz, Ph.D. (Professor in the Depart- Constitutional Affairs Section, WIPO). ment of Political Science at the University of Arguably “hybrid” scholars: Michael California, Irvine). Byers and Stephen Toope. Based on his degree (but not institutional 51 http://www.jilir.org/, retrieved from the affiliation), Alec Stone Sweet might also be World Wide Web, September 16, 2007. considered an “IR” scholar: Ph.D. (Leitner 52 As of September 2007, the Board included Professor of Law, Politics and International Kenneth Abbott (Arizona State University); Studies at Yale Law School but formerly Jose Alvarez (Columbia University); Upendra Official Fellow, Chair of Comparative Baxi (American Unversity); Laurence Politics, at Nuffield College, Oxford). Boisson de Chazournes (University of Notably, Gurowitz, Price, and Reus- Geneva); Jutta Brunnée (University of Smith all received their doctoral degrees Toronto); Michael Byers (University from Cornell University. of British Columbia); Martha Finnemore 58 Arguably “IL” scholars: Antony Anghie, (George Washington University); Thomas S.J.D. (Professor at the S. J. Quinnery Franck (NYU); Robert Keohane (Duke School of Law at the University of Utah); University); Benedict Kingsbury (New Dino Kritsiotis, LL.M. (Reader in Public York University); Karen Knop (University of International Law at the University of Toronto); Martti Koskenniemi (University Nottingham); David Wippman, J.D. of Helsinki); Stephen Krasner (Stanford (Professor of Law at Cornell University). University); Friedrich Kratochwil (European 59 For a review, see Silverburg 2006. University Institute); Oona Hathaway 60 Abbott and Snidal (2004), Benvenisti (2004), (Yale University); Réné Provost (McGill Brown Weiss (2004), Downs and Jones University); Philippe Sands (University (2004), Hirsch (2004), Howse (2004), College London); Shirley Scott (University Kacowicz (2004), Milner, Rosendorff, and of New South Wales); Gerry Simpson Mansfield (2004), Mavroidis (2004), and (London School of Economics); Janice Stein Slaughter (2004a). Abbott and Snidal 2004 (University of Toronto); Stephen Toope extends the analysis offered in Abbott and (Trudeau Foundation and University of Snidal 2000. British Columbia); and Rob Walker (Keele 61 Arguably “IR” scholars: George W. Downs, University). Ph.D. (Professor in the Department of

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Politics at New York University); Arie M. IL/IR compendium volumes: Abbott K.W. Kacowicz, Ph.D. (Senior Lecturer in Inter- (1999); Downs, Rocke, and Barsoom national Relations at Hebrew University of (1996); Koh (1997a); Moravcsik (2000); and Jerusalem); Edward D. Mansfield, Ph.D. O’Connell (1999). (Hum Rosen Professor of Political Science 71 From the “Legalization” special issue of IO: at the University of Pennsylvania); Helen Abbott, et al. 2000; Goldstein and Martin V. Milner, Ph.D. (B. C. Forbes Professor 2000; Keohane, et al. 2000. “The rejoinder” of Politics and International Affairs at Finnemore and Toope 2001a. Princeton University); Peter Rosendorff, 72 Fortna 2003. Ph.D. (Economics) (Associate Professor of 73 Steinberg 2002. International Relations and Economics at 74 Simmons 2000. the University of Southern California); and 75 Rudolph 2001. Duncan Snidal, Ph.D. (Associate Professor in 76 Moravcsik 2000. the Department of Political Science at the 77 Mitchell 1994. University of Chicago). 78 Raustiala and Victor 2004. Collaborating with Downs was Michael A. 79 For a review, see Beck 2006. Schoenbaum Jones, an Associate Professor in the Depart- is an “IL” scholar, with J.D. and Ph.D. (Law) ment of Mathematics at Montclaire State degrees. Even so, he serves as both Dean and University. Virginia Rusk Professor of International 62 Arguably “IL” scholars: Eyal Benvenisti, Law and Professor of Political Science at the LL.B., LL.M., J.S.D. (Professor of Law, Tel University of Georgia. Aviv University Faculty of Law); Moshe 80 Schoenbaum submitted that “state interests” Hirsch, L.B., LL.M., Ph.D. (Faculty of in the twenty-first century had broadened, Law); Arnold Brecht (Chair in European Law, with those interests “rooted in cooperation” Vice Dean of the Faculty of Law, and Senior and also those “held in common with all of Lecturer, Faculty of Law and Department of international society” predominating (2006: International Relations, Hebrew University viii). The world was small and interconnected, of Jerusalem); Robert Howse, LL.B., LL.M. as never before. Security, traditionally (Professor of Law, University of Michigan viewed exclusively through a “state” lens, now Law School); and Petros C. Mavroidis, had vital “human” and “environmental” LL.B., LL.M., Ph.D. (Law) (Professor of aspects (2006: viii). In the globalized realm, Law, Columbia Law School). international rules were “indispensable to 63 For reviews of this work, see Silverburg furthering state interests,” creating legiti- 2005 and Sriram 2005. The work, and macy, order, and predictability (2006: ix). “rational choice” approaches to law more gen- International institutions, meanwhile, might erally, were also critiqued by Schoenbaum exert a “multiplier effect” that was “indis- (2006: 87–90). pensable to the solution of world problems” 64 Other rational choice works of interdisciplinary (2006: ix). While reform would be difficult, scholarship are Setear 1996 and 1997. John Schoenbaum insisted, his liberal internation- Setear, J.D., teaches at the University of alist approach offered the best, if inevitably Virginia’s Law School and is arguably an “IL” imperfect, “path” to world peace and secur- scholar. A response to an early articulation of ity (2006: xiv). Elaborating this argument, The the game theoretical approach of Goldsmith Path Not Taken addressed such crucial areas and Posner was offered by Chinen 2001. as peace and security (2006: 96–147), inter- 65 Goldsmith 2000, 2003; Goldsmith and Posner national political economy (2006: 148–95), 1999, 2000a, 2002, 2003a; Posner 2003. international environmental protection 66 “We identify state interests in connection (2006: 196–249), international human rights with particular legal regimes by looking, (2006: 250–84), and international crimes based on many types of evidence, to the (2006: 285–301). preferences of the state’s political leadership” 81 Arguably “IL” scholars: Kenneth Abbott; (Goldsmith and Posner 2005: 6, emphasis Harold Hongju Koh; Madeline Morris, added). J.D. (Professor of Law, Duke University); 67 For example, see Koh 1997a. Mary Ellen O’Connell; Diane Orentlicher, 68 Henkin 1968. J.D. (Professor of Law, American University, 69 Franck 1990. Washington College of Law); Leila Nadya 70 Among the featured works in Hathaway Sadat, J.D., LL.M. (Henry H. Oberschelp and Koh 2005 that are also featured in other Professor of Law, Washington University –

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St. Louis Law); Gerry Simpson, LL.B., 84 For examples of interdisciplinary articles LL.M., S.J.D. (Professor in Public Interna- written before 1998, see the bibliography of tional Law, Department of Law, London Slaughter, et al. 1998: 394–7). School of Economics); and Peter J. Spiro, J.D. 85 Beck 1996: 4. Stephen Toope found “the (Charles R. Weiner Professorship in Inter- incessant self-labeling of international rela- national Law, Temple University, Beasley tions scholars somewhat precious” (Toope School of Law). 2000: 93). Martti Koskenniemi, meanwhile, 82 Arguably “IR” scholars: Fiona Adamson, noted that “like many others, [he] dislike[d] Ph.D. (Assistant Professor, School of Public being labeled and marketed in accordance Policy, University College London); Thomas with the logic of consumer capitalism” J. Biersteker, Ph.D. (Luce Professor of (1999: 352). Transnational Organizations, Brown Uni- 86 Abbott 1992: 167; Spiro 2000a: 581. versity); Martha Finnemore, Ph.D. (Professor According to Hathaway and Koh, “Today, of Political Science and International Affairs, international law and international relations George Washington University); William are increasingly viewed as a single discipline” Reno, Ph.D. (Associate Professor, North- (2005: 2). western University); Nicholas J. Wheeler, 87 “[T]he study of international law has Ph.D. (Professor, Department of International enjoyed something of a renaissance in the last Politics University of Wales, Aberystwyth). two decades” (Simmons and Steinberg 2006: Arguably a “hybrid” scholar: Chandra xxix). Lekha Sriram, J.D., Ph.D. (Politics), Pro- 88 Spiro 2000a: 585. “The risk for international fessor, Chair in Human Rights and Director, law scholarship in over-committing to IR is Centre on Human Rights in Conﬂict Uni- that the latter’s models prove unable to fully versity of East London, School of Law. explain globalization as it becomes further 83 “Practitioners”: Dr. Clarence J. Dias, embedded.” President of the International Center for 89 As a convention, scholars’ associations with Law in Development, a Third World NGO given states have been based on the locations concerned about human rights in the devel- of their institutions, not on their nation- opment process, Ph.D. degree in law from alities. Even so, as one might expect, a num- Bombay University and S.J.D. degree from ber of scholars teach in states other than those Cornell Law School; Francis M. Deng is a of their birth or nationality. Argentine native senior fellow in the Foreign Policy Studies Marcelo G. Kohen teaches in Switzerland, Program at the Brookings Institution; for example, while Greek native Achilles Youssef Mahmoud, U.N. Secretary- Skordas teaches in the United Kingdom. General’s Deputy Special Representative for 90 The following treatment of subject areas and Burundi, Ph.D. in Linguistics from representative interdisciplinary scholarship is Georgetown University and an M.A. in only illustrative, not exhaustive. American and British studies from the 91 The following treatment of research questions University of Tunis; Ellen L. Lutz, M.A. J.D., and representative interdisciplinary scholarship Executive Director of Cultural Survival, is only illustrative, not exhaustive. Important Former Executive Director of the Center for questions not treated in detail here are: What Human Rights and Conﬂict Resolution, are the relationships between international law, Tufts University’s Fletcher School of Law norms, and “practical reason?” (Reus-Smit and Diplomacy; Robert Muggah, a doctoral 2001; Toope 2000: 101–104). What is the candidate at Oxford University and a project relationship between constructivism and the manager at the Small Arms Survey, an inde- English school? (Abbott 1999: 367; Beck 1996: pendent research project located at the 21, n. 10; Bederman 2001a: 476; Hathaway Graduate Institute of International Studies and Koh 2005: 18–19, 132; Reus-Smit in Geneva, Switzerland; Veronica Raffo, 2002; Ruggie 1998. Consultant, World Bank, Poverty Reduc- 92 On the role of U.S. hegemony in internation and Economic Management Network; tional legal change, see Byers and Nolte and Curtis Anthony Ward, J.D., LL.M. – an 2003. independent expert and advisor on technical 93 Eyre and Suchman 1996; Haas 1992. assistance to the United Nations Security 94 Abbott 2007; Deng 2007. For an account Council Counter-Terrorism Committee of the interwar creation of soft law related (CTC), and CTC liaison with regional and to international refugee protection, see Beck international organizations. 1999.

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95 A seminal work on legitimacy is by IR 105 Cutler (2002, 61–62). This relatively novel scholar, Inis L. Claude, Jr. (1966). A more development constitutes a departure from recent high-profile work on the “power of more traditional “calls for interdisciplinarity legitimacy” by an IL scholar is Franck 1990. . . . premised on singling out a more or less Also noteworthy are Franck 1995 and Hurd realist version of international relations 1999. For an overview of “theories of fair- scholarship as the ideal companion, probably ness and legitimacy,” see Hathaway and Koh on the basis of the unarticulated thought that 2005: 135–73). For a prominent critique at least the realists know how the world works, of Franck’s “legitimacy” perspective, see how power politics operate, and how states- Keohane 1997. men think” (Klabbers 2005: 38). 96 For a review essay, “Why do nations obey 106 For treatments of constructivism in the con- international law?”, see Koh 1997a. text of international law, see, for example: 97 Cosnard 2003; Klein 2003; Kohen 2003; Arend 1999; Finnemore 1996: 139–49, Krisch 2003; Kwakwa 2003; Paulus 2003; 2007; Hathaway and Koh 2005: 112–35; Redgwell 2003; Roth 2003; Scott 2003; Kacowicz 2001; Price 2004: 107–109; Skordas 2003; Stoll 2003; and Toope 2003. Reus-Smit 2004a; Slaughter 2004a: 32–9; and 98 Raffo, et al. 2007: 2. Toope 2000: 93–9. 99 To a somewhat lesser extent, a practitioner 107 Slaughter was more sanguine in a recent orientation also informed the Byers and assessment: “International lawyers . . . have Nolte (2003) edited volume. learned to deploy political science tech- 100 Barnett is an eminent constructivist who niques and draw on empirical data to make holds a Ph.D. and serves the University positive claims about how law works. of Minnesota as Harold Stassen Chair of Political scientists, on the other hand . . . International Affairs in Hubert Humphrey have learned to listen to international Institute of Public Policy and as Professor of lawyers’ insights about how phenomena Political Science. such as compliance actually work, and to build 101 Hirsch noted: “Less preoccupied with the those insights into their theories and models” question of how much compliance, scholars (2004a: 48–9). now pose the more intriguing question of why 108 Discussing interdisciplinarity per se, Bank and compliance is prevalent in the international Lehmkuhl warned of other perils: “[A]ll too community” (2004: 166). Still, a volume on often the promise of interdisciplinarity is not law’s role in international politics included kept. Rather, interdisciplinarity is confused essays that addressed fundamental questions on with either crude instrumentalization of international law’s salience: Allott 2000; other disciplines’ knowledge while ignoring Lowe 2000a; and Watts 2000. Moreover, the underlying methodological assumptions a key question addressed by Goldsmith or an oversimplified dissolution of discip- and Posner’s prominent book (2005) was linary distinctions” (2005: 155). whether international law mattered. 109 Raffo, et al. 2007: 6. Sriram noted in an ear- 102 Raffo, et al. 2007: 4, emphasis added. Even lier essay, too, that “great strides [had] been so, Thomas Schoenbaum contends: “Inter- made” but “more remain[ed] to be done” national relations experts now readily admit (Sriram 2006: 467). the relevance of legal rules and processes in 110 Hathaway and Koh 2005: 20. Barker noted in the construction and operation of international 2000: “[T]he prospects for interdisciplinary regimes and international problem solving. scholarship between international relations International law also offers IR new and and international law have improved greatly useful models of cooperation. . . . But not in recent years” (96). everyone is convinced; in fact, doubters are 111 Ratner and Slaughter 1999: 302. probably in the majority” (Schoenbaum 112 Simpson and Wheeler 2007: 124. Dias 2006: 61–62). offered an even starker admonition: “Now is 103 See, for example, all the contributors to the time for the IL and IR communities to Reus-Smit 2004a and some of the contri- bridge their divide and address the multiple butors – e.g. Kratochwil – to Byers 2000. crises facing international law. Otherwise, not 104 Cutler noted, however, that IR scholars only will international law become redundant, tended to “refer to agents or actors, con- but the IR and IL communities will face flating the analytical concepts of source and the threat of extinction as well” (Dias 2007: subject” (2002: 65). 286).

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113 Three recent detailed expositions of promis- that improve world order: http://www. ing areas for interdisciplinary research were grawemeyer.org/winners/index.html. offered by Slaughter (“The road ahead”) 121 As Slaughter recently averred in her “Pro- (2004a: 39–49), Sriram (“Beyond responses spectus” on IL and IR theory: “Domestic from IR theory”) (2006: 470–72), and politics are as important for international Finnemore (2007). lawyers as international politics” (2004a: 46). 114 In a 1996 reflection on “The prospects Interdisciplinary interest in the domestic for interdisciplinary collaboration,” it was realm seems likely to continue in the near already observed that “both International term, even as the prospect looms of further Relations and International Law began as “cosmopolitanisation” in the global realm – largely state-centered disciplines,” but that each with its potential blurring of the domestic and had “come increasingly to appreciate the the international. significance of non-state actors and phenom- 122 See Price and Reus-Smit 1998 and Slaughter ena. Indeed, some . . . scholars now even 2004a: 37–9. [found] the very notions of state-centric 123 On the “logic of consequences” and “logic analysis and state sovereignty problematic” of appropriateness,” concepts drawn from cog- (Beck 1996: 5). For the view that IR nitive psychology, see March and Olsen remains fundamentally state-centric, to the (1999: 309–12). Hathaway and Koh depict discipline’s detriment, and perhaps leading “a conceptual divide [that] . . . interweaves the to its ultimate irrelevance and hence demise, work of legal scholars and political scientists. see Spiro 2000a: 582–5. The divide stands between those theories 115 Raffo, et al. 2007: 7. See also Finnemore 2007: that tend to portray states primarily as uni- 267. tary actors that engage in instrumental 116 Reus-Smit 2004b: 7. See also Gurowitz behavior designed to promote exogenously 2004; Spiro 2000a: 569; and Wippman given national interests – which we term 2004. For another view of the international ‘interest-based’ theories – and those that legal system’s future, see Arend 1999: 165– tend to view states instead as motivated as 88. much by ideas (or ‘norms’) that help to con- 117 See, for example, Finnemore 2007: 272–5. struct their perceived self-interest – grouped For a discussion of constructivism’s spe- here together under the general heading of cial appeal for international lawyers, see ‘norm-based’ theories” (Hathaway and Koh Slaughter 2004a: 37. Here, she conceded that 2005: 2) “most standard overviews of IR theory priv- Of course, constructivists care also about ilege the Rationalist versions of each of the the “logic of argumentation” (Reus-Smit paradigms. Constructivist variants are thus 2004b: 23). (See also, e.g. Kratochwil 1989: often found in the role of critique” (37). 12.) The “liberal transnationalist” approach 124 For a recent example of “critical construc- might also have some appeal for interdiscip- tivism,” see Eckersley 2004. For an analysis linarians (e.g. Spiro 2007). of the affinities between critical theory and 118 For useful overviews, see Hathaway and constructivism, see Price and Reus-Smit Koh 2005: 78–110; Slaughter 2000b, 2004a: 1998. 29–32. 125 Slaughter 2004a: 33. Although Slaughter 119 See especially Koh 1996a, 1997a, 1997b, was speaking largely to differences between 1999. instrumental and normative outlooks, her 120 For example, Activists Beyond Borders (Keck words may also be applied to broader distinc- and Sikkink 1998), an analysis of transnational tions between rationalist and sociological/ advocacy networks, won the 2000 Univer- constructivist perspectives (e.g. critical vs. sity of Louisville Grawemeyer Award for ideas otherwise).

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Appendix IL/IR interdisciplinary scholars

** indicates Journal of International Law and International Relations board members

IL scholars

Name Degree Title Institutional afﬁliation(s)

Abbott, J.D., LL.M. Edward Ball Eminent Scholar Florida State University Frederick M. College of Law Abbott, Kenneth J.D. Professor of Law Willard H. Arizona State University Pedrick Distinguished Research Scholar College of Law Also Professor of Global Studies, School of Global Studies **Allott, Philip M.A., LL.M., LL.D. Reader in International Public Trinity College, University of Law and a Fellow Cambridge Formerly a legal counselor in the British Foreign and Commonwealth Ofﬁce ** Alvarez, José J.D. Hamilton Fish Professor of Columbia University International Law and Diplomacy Director of the Center on Global Legal Problems Anghie, Antony S.J.D. Professor at the S. J. Quinnery University of Utah School of Law ** Baxi, Upendra LL.B., LL.M., J.S.D. Professor of Law in Development University of Warwick Bederman, David J.D., M.Sc., Ph.D. Professor of Law Emory University School of in Law Law Benvenisti, Eyal LL.B., LL.M., J.S.D. Professor of Law Tel Aviv University, Faculty of Law, Israel ** Boisson de Ph.D. Professor and Director of the Faculty of Law, University of Chazournes, (international law) Department of Public Geneva Laurence International Law and International Organization

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IL scholars

Name Degree Title Institutional afﬁliation(s)

** Brunnée, Jutta LL.M., Dr. iur. Metcalf Chair in Environmental Faculty of Law, University of Law Toronto Charlesworth, LL.B., S.J.D. Professor in RegNet and Director Australian National University, Hilary of the Centre for International Canberra Governance and Justice **Cosnard, Michel B.Sc., M.Sc., Ph.D. Professor of International Law University of Maine (Le Mans, France) Dunoff, Jeffrey L. J.D., LL.M. Charles Klein Professor of Law Temple University Beasley and Government and Director School of Law of the Institute for International Law and Public Policy at ** Franck, Thomas LL.B., LL.M., S.J.D. Murry and Ida Becker Professor New York University School of Law Emeritus of Law ** Hathaway, J.D. Associate Professor of Law Yale Law School Oona A. Hirsch, Moshe LL.B., LL.M., Ph.D. Arnold Brecht Chair in European Faculty of Law and Law, Vice Dean of the Faculty Department of International of Law, Senior Lecturer Relations, Hebrew University of Jerusalem Howse, Robert LL.B., LL.M. Professor of Law University of Michigan Law School ** Kingsbury, LL.B., M.Phil., Murry and Ida Becker Professor New York University School Benedict W. D.Phil. (law) of Law of Law Director, Institute for International Law and Justice Klabbers, Jan LL.D. Professor University of Helsinki, Faculty of Law **Klein, Pierre Licence en droit; Professor of International Law Université Libre de Bruxelles licence spéciale en and Director of the Centre for (Belgium) Droit International; International Law PhD (Law) **Knop, Karen LL.B., LL.M., S.J.D. Professor University of Toronto Faculty of Law Koh, Harold M.A. (Oxford), J.D. Latrobe Smith Professor of Yale Law School Hongju International Law Kohen, Marcelo Ph.D. (international Professor of International Law Graduate Institute of law) International Studies, Geneva, Switzerland ** Koskenniemi, LL.B., LL.M., LL.D. Professor of International Law University of Helsinki Finland Martti Krisch, Nico Dr. iur. Lecturer in Law London School of Economics, Department of Law Kritsiotis, Dino LL.M. Reader in Public International University of Nottingham Law Mavroidis, Petros C. LL.B., LL.M., LL.M., Professor of Law Columbia Law School Ph.D. (law) Morris, Madeline J.D. Professor of Law Duke University Nolte, Georg Dr. iur. Professor of Law University of Munich, Germany O’Connell, LL.B., J.D. Robert and Marion Short University of Notre Dame Mary Ellen Professor of Law

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IL scholars

Name Degree Title Institutional afﬁliation(s)

Orentlicher, Diane J.D. Professor of Law American University, Washington College of Law **Paulus, Andreas Ph.D. Professor of International and University of Göttingen Public Law ** Provost, René LL.B., LL.M., Director, CHRLP (Law) McGill University Faculty of D.Phil. Law (international law) Ratner, Steven J.D. Professor of Law University of Michigan Law School Redgwell, Catherine LL.B., M.Sc. Professor of International Law University College London Sadat, Leila Nadya J.D., LL.M. Henry H. Oberschelp Professor Washington University – of Law St. Louis Law **Sands, Philippe LL.M. Professor of Law and Director of Faculty of Laws – University the Centre on International College London Courts and Tribunals in the Faculty Schoenbaum, J.D., Ph.D. (law) Dean and Virginia Rusk Professor University of Georgia Thomas J. of International Law School of Law Professor of Political Science University of Georgia Setear, John J.D. Thomas F. Bergin Professor University of Virginia Simma, Bruno Dr. iur. Judge International Court of Justice Former Dean University of Munich Faculty of Law **Simpson, Gerry LL.B., LL.M., S.J.D. Professor in Public International London School of Economics Law, Department of Law Skordas, Achilles Dr. iur. Reader in Law University of Bristol School of Law Spiro, Peter J. J.D. Charles R. Weiner Professorship Temple University Beasley in International Law School of Law Stern, Brigitte LL.M., M.C.J. Professeur à l’Université Paris 1 – Panthéon-Sorbonne France Stoll, Peter-Tobias Dr. iur. Professor Georg-August-Universität Managing Director, Institute of Göttingen – Law International Law Trachtman, Joel P. J.D. Professor of International Law The Fletcher School Wiessner, Siegfried Dr. iur. LL.M. Professor of Law; Founder and St. Thomas University School Director LL.M./J.S.D. Program of Law in Intercultural Human Rights at **Willard, Andrew B.A. Senior Research Scholar Yale Law School President of the Policy Sciences Center Wippman, David J.D. Professor of Law Cornell University

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IR scholars

Name Degree Title Institutional afﬁliation(s)

Adamson, Fiona Ph.D. Assistant Professor, School of University College London Public Policy Alter, Karen J. Ph.D. Associate Professor, Department Northwestern University of Political Science Arend, Anthony Ph.D. Professor of Government Georgetown University Clark Adjunct Professor of Law Department of Government Georgetown University Law Center Barnett, Michael N. Ph.D. Harold Stassen Chair of University of Minnesota, International Affairs Hubert Humphrey Institute Professor of Political Science of Public Policy Beck, Robert J. Ph.D. Associate Professor, Department University of Wisconsin – of Political Science Milwaukee Biersteker, Ph.D. Luce Professor of Transnational Brown University Thomas J. Organizations Diehl, Paul F. Ph.D. Henning Larsen Professor of University of Illinois at Political Science Urbana-Champaign Downs, George W. Ph.D. Professor, Department of Politics New York University **Finnemore, Ph.D. Professor of Political Science and George Washington Martha International Affairs University Goldstein, Judith Ph.D. Professor of Political Science Stanford University Gowlland-Debbas, Ph.D. Professor in the International Law Graduate Institute of Vera section International Studies, Geneva Switzerland Gurowitz, Amy Ph.D. Lecturer in Political Science University of California at Berkeley Hurrell, Andrew D.Phil. University Lecturer in Nuffield College, Oxford International Relations, Director of the Centre of International Studies, Faculty Fellow Kacowicz, Arie M. Ph.D. Senior Lecturer in International Hebrew University of Relations Jerusalem Kahler, Miles Ph.D. Rohr Professor of Pacific Graduate School of International Relations International Relations and Pacific Studies **Keohane, Ph.D. Professor of International Affairs Woodrow Wilson School, Robert O. Princeton University **Krasner, Ph.D. Graham H. Stuart Professor, Stanford University Stephen D. Department of Political Science **Kratochwil, Ph.D. Chair of International Relations European University Institute, Friedrich Political and Social Sciences Mansfield, Ph.D. Hum Rosen Professor of Political University of Pennsylvania Edward D. Science Martin, Lisa L. Ph.D. Professor of Government Harvard University Milner, Helen V. Ph.D. B. C. Forbes Professor of Politics Princeton University and International Affairs Moravcsik, Andrew Ph.D. Professor of Politics and Director Princeton University of the European Union Program Price, Richard Ph.D. Associate Professor of Political University of British Columbia Science Canada

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IR scholars

Name Degree Title Institutional afﬁliation(s)

Reno, William Ph.D. Associate Professor Northwestern University Reus-Smit, Ph.D. Professor and Head of the Research School of Paciﬁc and Christian Department of Asian Studies at the International Relations Australian National University, Canberra Rosendorff, Peter Ph.D. (economics) Associate Professor of University of Southern International Relations and California Economics Roth, Brad R. Ph.D. Associate Professor, Department Wayne State University of Political Science Sandholtz, Wayne Ph.D. Professor, Department of Political University of California, Irvine Science **Scott, Shirley V. Ph.D. Associate Professor in University of New South International Relations Wales, Australia Sikkink, Kathryn Ph.D. Arleen C. Carlson Professor of University of Minnesota Political Science: Professor of Law University of Minnesota Law School Simmons, Beth A. Ph.D. Professor of Government Harvard University Snidal, Duncan Ph.D. Associate Professor, Department University of Chicago of Political Science **Stein, Janice Ph.D. Harrowston Professor of Conﬂict University of Toronto Management and Negotiation Department of Political Science **Walker, R. B. J. Ph.D. Professor of International Keele University (Rob) Relations Wheeler, Nicholas J. Ph.D. Professor, Department of University of Wales International Politics Aberystwyth

Hybrid scholars

Name Degree Title Institutional afﬁliation(s)

**Byers, Michael D.Phil., Ph.D., Canadian Research Chair in University of British Columbia LL.B., B.C.L. International Law and Politics Chinkin, Christine LL.B., LL.M., Professor of International Law London School of Economics LL.M., Ph.D. and Political Science Eckersley, Robyn B.Juris, LL.B., Professor, School of Political University of Melbourne M.Phil., Ph.D. Science, Sociology and Criminology Previously served as a public lawyer Ku, Charlotte M.A.L.D., Ph.D. Assistant Dean for Graduate and University of Illinois College International Legal Studies of Law Formerly Executive Director of the American Society of International Law Lowe, Vaughan LL.B., LL.M., Ph.D. Chichele Professor of Public University of Oxford International Law and a Fellow of All Souls’ College Slaughter, J.D., D.Phil. Dean Princeton University Anne-Marie (international Woodrow Wilson School relations) 42 9780415418768_4_001.qxd 26/11/2008 02:35PM Page 43

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Hybrid scholars

Name Degree Title Institutional afﬁliation(s)

Sriram, Chandra J.D., Ph.D. (politics) Professor; Chair in Human University of East London Lekha Rights; Director Centre on School of Law Human Rights in Conﬂict Steinberg, J.D., Ph.D. Professor of Law UCLA Richard H. Senior Scholar, Division of Stanford University International, Comparative, and Area Studies Sweet, Alec Stone Ph.D. Leitner Professor of Law, Politics Yale Law School and International Studies **Toope, Stephen LL.B., B.C.L., Ph.D. President (2006–) University of British Columbia Professor of Law McGill University Weiss, Edith Brown J.D., Ph.D. Francis Cabell Brown Professor of Georgetown University Law International Law Center Co-director of the Joint Degree in Law and Government

Practitioners

Name Degree Title Institutional afﬁliation(s)

Deng, Francis M. LL.B., LL.M., J.S.D. Senior Fellow Brookings Institution Foreign United Nations Secretary- Policy Studies Program General’s representative on internally displaced persons Dias, Clarence J. Ph.D., S.J.D. President International Center for Law in Development Kwakwa, Edward LL.M., J.S.D. Deputy Legal Counsel and Head WIPO of the Legal and Constitutional Affairs Section Lutz, Ellen L. M.A., J.D. Executive Director Cultural Survival Former Executive Director Tufts University Fletcher School’s Center for Human Rights and Conﬂict Resolution Mahmoud, Youssef Ph.D. (linguistics) U.N. Secretary-General’s Deputy Special Representative for Burundi Muggah, Robert Doctoral candidate Oxford University Project manager Small Arms Survey, an independent research project located at the Graduate Institute of International Studies, Geneva Raffo, Veronica Consultant World Bank, Poverty Reduction and Economic Management Network Ward, Curtis B.A., J.D., LL.M. Independent expert and advisor United Nations Security Anthony on technical assistance Council Counter-Terrorism CTC liaison with regional and Committee (CTC) international organizations

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2 International law and international community

Andreas Paulus

The term “international community” adds a normat- and intervenes, as in the case of Kosovo (Klein ive element of common values to the more factual 2000), it helps the victims of natural disasters, notion of an interconnected international society com- is called on to redouble its efforts to prevent posed of states and other international actors. The and suppress terrorist acts, as after the attacks chapter analyzes institutionalist, liberal and post- against the United States on September 11 modern views of the international community. It also (UN Security Council 2001a), or seems looks at more recent claims that international law helpless and inactive in spite of the best of is fragmenting rather than developing into a commun- its intentions, as in Darfur (Paulus 2008a). ity. The chapter concludes that a common ground Resolutions of international organizations of values is needed for international law to function. and NGO conferences alike use the term in The international community does not constitute a an almost inﬂationary way. It is invoked by system superior to all others, but is a shortcut for statespersons around the world. Even the Bush the dealings of states and non-state actors beyond administration, which came into ofﬁce state boundaries, and for a collective endeavor to tackle reluctant to use a concept so much tied to a problems such as the protection of the environment more egalitarian view of international relations and the prevention of genocide and famine. than its own (Rice 2000), is now using the term regularly in its press releases (White But do the nations constitute a community? . . . The history of International Law is, House 2008). largely, the history of the formation of It is perhaps no coincidence that the this community, so far as it may be said to popularity of the concept has grown along with have been formed – the building up of the awareness of the consequences of glob- common opinions upon common practices alization. Whereas the latter stands for the and the writings of commonly accepted sometimes harsh economic realities of an commentators. age which seems no longer to allow for the (Wilson 1969: 455; emphasis in original) territorial protection of local habits and mores, the “international community” con- Introduction notes the emergence of a new global home, a worldwide village of human commonality In the age of globalization, the “international emphasizing interpersonal bonds rather than community” appears omnipresent: it acts territorial borders. And yet, it may also be used 44 9780415418768_4_002.qxd 26/11/2008 02:35PM Page 45

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for the exclusion of others, such as rogue states, analysis of its effects on the persons at the terrorists, and, at times, anti-globalization receiving end, so to speak. Which purposes activists. does the term serve? Is the invocation of the The term “international community” is “international community” a move to hide sometimes used interchangeably with the one’s own lust for power behind a smoke- term “international society” (Henkin 1995a).1 screen of high-mindedness – or, in Martti As a more extensive inquiry has shown, the Koskenniemi’s provocative words, “kitsch” usage is far from uniform (Paulus 2001b: 9, (Koskenniemi 2005b: 121–23)?2 Or does it 439). Nevertheless, one may say – with the serve the useful purpose of pointing to a claim necessary caution – that a community adds a of authority rooted not in a domestic source, normative element, a minimum of subjective but in some internationally agreed basic val- cohesion to the social bond between its ues of global import? Obviously, to answer members. Whereas society emphasizes factual these questions in any comprehensive way is interconnections and interrelations, com- impossible.3 But this chapter intends to show munity looks to values, beliefs and subjective that most concepts of international law are feelings. The differentiation between society based on a particular view of the international and community thus echoes the German community. sociologist Ferdinand Tönnies’ distinction We will look at three different under- between Gemeinschaft and Gesellschaft (Tönnies standings of the international community, insti- 1935). But despite the inclusiveness of the tutionalist, (neo)liberal, and postmodernist. term, even a universal community knows an Whereas an institutional view couples the outside, an environment against which it development of an international community deﬁnes and delineates its identity (Simma to the establishment of successful international and Paulus 1998: 268). Hence the debate on institutions (Abi-Saab 1987; Dupuy 2002; “rogue states” and an “axis of evil” composed Simma 1994; Tomuschat 1999; cf. Miller and of states that do not seem to share the alleged Bratspies 2008), liberal views are increasingly consensus (Bush 2002a). skeptical of public international institutions Recent developments, from September and base the international legal order on indi- 11 to the war in Iraq, have pushed the idea vidual preferences and human rights instead of an international community based on (Buchanan and Keohane 2006; Reisman common values and international law farer 1990; Slaughter 1995). Finally, postmodern- away than ever. The counter-image of inter- ist writers reject the universality of liberal national community, the “clash of civilizations” principles and demand a regard for the other, (Huntington 1996), appears nearer to reality. for difference rather than unity, for unintended It is however precisely the multiplicity of consequences rather than good intentions religious and ethical approaches to the world (Kennedy 1999). that make the agreement on a minimum of We will proceed to conceptualize the common values so important. It is one of emerging pluralism of legal orders and ask our- the main tasks of international law to provide selves whether the increasing perception of rules of coexistence and, increasingly, to ﬁnd the “fragmentation” of the international legal avenues to solutions to global problems not order will render any attempt at a holistic, in spite, but because of the global pluralism communitarian view of the international of value and belief systems. legal realm impossible (Teubner and Fischer- Analyzing the international community Lescano 2004). We will also look at the emer- requires more than the development of ging discipline of “global administrative law” abstract concepts, however. It requires the that develops a view of the role of inter- analysis of the impact of the concept on legal, national law “from the bottom” rather than social, and political practice, including an starting at the “constitutional” level of the 45 9780415418768_4_002.qxd 26/11/2008 02:35PM Page 46

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ordering of the global international society 2006), a war that was, according to most (Krisch and Kingsbury 2006a; Kingsbury accounts, contrary to international law (Fisler et al. 2005). Damrosch and Oxman 2003: 553–642; This contribution concludes that contem- Paulus 2004b), challenge traditional con- porary international law embraces parts of all cepts of an international community based on the conceptions developed earlier. However, the “sovereign equality” of states, as Article the different attempts to establish an interna- 2, para. 1, of the Charter of the United Nations tional legal order are evidence of the need has it. September 11 puts into question the to develop a comprehensive vision, even if conceptualization of the international com- such conception will always remain partial munity as a “community of states” with little, and incomplete. Laying out one’s view of if any, direct participation of individuals in the whole appears preferable to the holding global governance. When the main security of implicit assumptions without admitting threat does not emanate from states but from much criticism or debate. Ubi societas, ibi jus, terrorist groups of individuals, states appear to a Roman proverb says: No society without have lost some of their monopoly of the use law. But the reverse is also true: Ubi jus, ibi of force. When the remaining superpower feels societas. While law cannot create a commun- free to ignore the most basic rules of inter- ity alone, it needs a minimum of common national law regarding the prohibition on the values and procedures to function. Thus, the use of force, but demands strict adherence from debate on the legal character of international other states, sovereign equality cannot be taken law is also a debate on whether a minimum for granted, not even as a normative ideal. of international community can be established Do September 11 and Iraq uncover per- to allow for international law to develop. manent flaws in the idea of an international community based on a global political “overlapping consensus” (Franck 1995: 14; Conceptions of the “international Rawls 1996: 147; Roth 1999: 6) and the rule community” of law, or do they merely reflect the broadening of globalization from the economic Every concept of international law is based to the political realm? International law can on an understanding of the social structure serve both as a constraint on power – for international law applies to. Accordingly, instance prohibiting the use of force – and as every theory of international law involves, a translation of power into concrete orders and explicitly or implicitly, a concept of interna- prohibitions. If the international community tional community or society. At the same time, threatened the “right to survival” of societies these background understandings are not of by rendering the state incapable of counter- an exclusively legal character. Thus, interna- ing new threats from non-governmental tional law does not require the acceptance of actors such as al-Qaeda by legal means, states one, or any, of the following conceptualiza- might choose to protect themselves as they tions. And yet, conceptions of “international see fit and look for international justification community” shed light on the way interna- later. Democratic constitutions may question tional law is understood and interpreted. the legitimacy of a legal order that emanates Concepts of international law and order do from the consensus of states independently of not exist somewhere in a vacuum. Rather, their democratic legitimacy. If, contrariwise, they are related to perceptions of political and the so-called “global war on terror”4 resulted legal events. Both the terrorist attacks on the in an international law embodying the writ United States of September 11, and the of a superpower rather than sovereign equal- latest war against Iraq by the United States ity, its worldwide acceptance would suffer. and a “coalition of the willing” (Benvenisti However, the United States does not seem 46 9780415418768_4_002.qxd 26/11/2008 02:35PM Page 47

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to lay out a coherent vision of such a hege- has called the “law or fundamental hypo- monic international order (Alvarez 2003; thesis of ‘legal physics’ ” (Abi-Saab 1998: Krisch 2005; Vagts 2001). 256) – demand the strengthening of global Let us have a look at some conceptualiza- institutions to respond to the challenge of tions of the international community to see globalization. whether and how they accommodate the However, institutionalism faces increasing situation after “September 11” and “Iraq.” difficulty with the current political mood after This chapter will single out three strands of September 11 and Iraq. The terrorist attacks responses to these questions – institutionalist– on the United States have confirmed the crit- communitarian, (neo)liberal, and post- ical attitude of the United States towards modernist. We will use recent developments European institutionalism. The U.S. govern- as a kind of “hard case” to test some of ment, at the time by-and-large supported by the conceptualizations of the international the American public, concluded that America community. needed to protect itself, and would not depend on the support of others.6 Indeed, in the writings of Robert Kagan (Kagan Institutionalist theory and 2002, 2003), which have been widely cited, globalization European institutionalism is presented as a Many international lawyers base the devel- system for good times only. In the European opment of a true international community or paradise, slow and bureaucratic institutions society on a societal consciousness encom- may be useful, but the world writ large is a passing the whole of humanity (Allott 1990; dangerous place, in which an America untied Dupuy 1986). Wolfgang Friedmann estab- by international institutions needs to provide lished the distinction between the law of order – in the best interests of the world in coexistence and the law of cooperation general, and of Europe in particular. (Friedmann 1964). Taking up that distinction, Since the Iraq adventure has turned into a some contemporary scholars, especially in the quagmire, such self-assuredness appears German constitutional tradition, developed increasingly unwarranted. In a postscript to concepts of a more institutionalized interna- his book, Kagan admits that the exercise of tional community. In that view, interna- power needs legitimacy to be successful, and tional law moves – or should move – “from that international institutions in general, and bilateralism to community interest” (Simma Europe in particular, can provide it (Kagan 1994), is about to establish “world interior 2004: 65). However, he charges Europe politics” (Delbrück 1993/4), or shall ensure with not fulfilling that role properly when it “the survival of mankind on the eve of a new withholds legitimacy from American unilat- century” (Tomuschat 1999). Instances of eral actions that the United States deems such an order in contemporary international necessary for the maintenance of international law can be seen, e.g. in jus cogens (Paulus peace and security. Thus, the display of mil- 2005), obligations erga omnes (Tomuschat itary power needs to be grounded in legiti- and Thouvenin 2006), in the concept of the macy to provide for order. However, what common heritage of mankind (Dupuy 1986: power can legitimacy have if it has no other 159–68), in the alleged “constitutionalization” option than to approve the use of force? of the UN security system (Fassbender 1998b) Nevertheless, there seems to be agreement that and of the WTO trading system (Petersmann international institutions may indeed serve a 1997: 421), and in the establishment of the useful function even for the single superpower. International Criminal Court.5 Those who Thus, the aftermath of September 11 believe in a parallelism between legal norms has not led to a diminishing of the role of and institutions – what Georges Abi-Saab international institutions, and has not stopped 47 9780415418768_4_002.qxd 26/11/2008 02:35PM Page 48

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the institutionalization of international or democracy – a people’s chamber of the U.N. rather global relations. Indeed, one could General Assembly might constitute a make the point that the role of the Secur- beginning (Franck 1995: 483). Others have ity Council has been enhanced rather than insisted on the nation state as the primary place diminished: Its lack of approval made the attack of democratic legitimation, control, and on Iraq even more risky, and the result so far accountability (Habermas 1996: 225, 672). certainly does not invite repetition. Both Further means of legitimation seem necessary, the United States and the United Kingdom in particular for the more informal exercise brought forward legal arguments that presented of power by international bodies not subject their action as an implementation of, rather to state control. But the pluralism of the inter- than derogation from, existing Security national community seems not to fulfill a basic Council mandates (Taft and Buchwald condition for a democracy based on simple 2003).7 Indeed, although they did not majority voting. Rather, considerable modi- receive backing from the Security Council for fications of domestic notions of democratic the attack itself, the United States and the legitimacy are required to apply them to United Kingdom returned to the Council to the international community (Besson 2007; legitimize the occupation and the establish- Paulus 2008b). ment of a new democratic order in Iraq.8 In areas beyond security, from trade to Liberalism after September 11 health and human rights, it is even more difficult to question the idea of an unstoppable The interstate model of international com- march of globalization towards the construc- munity, in which individual human beings tion of global institutions. The German soci- acquire rights and duties only via their ologist Niklas Luhmann has described this national states, appears to be in trouble when development as a move from territoriality to not only goods and services, but also indi- functionality (Luhmann 1997: 158–60, 1995b: viduals are increasingly moving internation- 571), from a world of sovereign territorial states ally, and where their ideas cross borders via to a world of functional institutions. The main the internet or other means of global com- characteristic of international institutionalism munication. A liberal concept of international consists in the multiplicity of institutions in community draws the consequences of these the international realm without an overarch- developments by focusing on individual ing hierarchy (Teubner and Fischer-Lescano rights and duties. Liberals and neoliberals 2004; Paulus 2004a).9 Thus, international demand a reconstruction of international law institutionalism will not end in a world state, on an interindividual basis. Informal “govern- but will have to deal with pluralism and ment networks” may become effective reg- multiplicity of institutional designs, from ulators, balanced by a minimum of effective governmental to non-governmental actors. domestic control (Slaughter 2004b). Teubner and Fischer-Lescano regard collisions Anne-Marie Slaughter has concluded that of different regimes as collisions between the the state as unitary actor has largely be- diverse rationalities within global society. come an abstraction far from reality. Rather, Their cure lies in a constitutionalization of the the liberal state is “disaggregated” into its particular rather than in the search for a rep- component parts, in particular in the three resentation of the general. branches of government: legislative, ex- Discourse ethics and democracy theory ecutive, judicial (Slaughter 1995, 2004b: emphasize the need of embedding global 131–65).10 Accordingly, these branches of democracy into institutional designs government are becoming separate, if not (Habermas 1996: 132, 672; Held 1995). independent, actors at the international level, Some suggest the development of global building “transgovernmental” networks with 48 9780415418768_4_002.qxd 26/11/2008 02:35PM Page 49

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their counterparts from other liberal states. Mechanisms of negotiation, accommodation “Transjudicial networks” of judges and and consensus seem inapt to counter the threat. lawyers play an increasing role in the self- “Either you are with us, or you are with the awareness of courts and tribunals all over the terrorists” (Bush 2001). Thus, liberalism is world: “The system these judges are creating (ab)used by neoconservatives for the benefit is better described as a community of courts of a hegemonic project. As the Iraq war shows, than as a centralized hierarchy” (Slaughter this odd combination of liberalism with 2004b: 68; see also Slaughter 2003). Of Schmittian concepts of friend and foe may course, this community also includes “legit- become a self-fulfilling prophecy. imate differences.” Nevertheless, lawyers While the Iraq war separated a legalist from liberal states are considered to have as and an imperialist wing of liberalism, these much, if not more, in common with each models share a potentially revolutionary indi- other than with their domestic counterparts vidualist view of international law, in which in the other branches of government. statist models and ideas are discarded for Whereas more moderate representatives of the benefit of individuals (Buchanan 2004; liberal ethics justified classical international law Buchanan and Keohane 2006; Tesón 1992). as allowing for multiple, diverse societies Human rights are the new paradigm, also at (Rawls 1999), more radical philosophers the cost of delegitimizing interstate institutions. demand the establishment of a “world social However, this raises not only the question order” fulfilling the promises of human of how to stabilize international law without rights at the international level (Beitz 1979; institutions, but also the question of how Pogge 1989). The international community the international community can cope with is not based on formal legitimacy alone, pluralism and difference. This question is at but also incorporates material fairness, with the core of the postmodern challenge. “shared moral imperatives and values” (Rawls 1999: 10–11). The institutional expression of Postmodern critique of international liberal values is less important than the pro- community tection of individual rights. In a liberal community of individuals, the justification of In a postmodern understanding, commun- state sovereignty is removed when the state ity is not possible without exclusion and fails to protect the rights of its citizens. In the suppression of “the other.” And indeed, the case of some writers, this position translates exclusion of others is as much part of any com- into a justification of unilateral intervention munity concept as their inclusion. Thus, for the protection of human rights – from community may be used as an ideological con- Kosovo to Iraq (Tesón 2005). struct for the maintenance of structures of September 11 has bolstered the views of power, excluding the “other,” the marginal, those who share both the belief in the sup- the different. Postmodernists criticize both the eriority of western values and the disdain social–democratic enthusiasm for new inter- for strong international institutions beyond national bureaucracies and the neoliberal the (democratic) nation state (White House reliance on unquestioned liberal values. 2002). Control of the superpower seems less The liberal concept of community is important than the confidence in its values rejected because it does not take account of and ability to act for the common good – or, the multiplicity of ethical approaches and rather, for the safeguard of individual rights marginalizes those opposed to the dominant of people everywhere. Islamic fundamental- model (Kennedy 1999: 123). Accordingly, in ists have literally declared war against liberal the last resort, liberal models of the interna- democracy, and the only recipe against these tional community stabilize – voluntarily or enemies of liberty is accepting the challenge. involuntarily – American hegemony. The 49 9780415418768_4_002.qxd 26/11/2008 02:35PM Page 50

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reliance on the market hides the political nature realism (Paulus 2001a),12 or in a complete lack of this choice and ultimately strives in vain of defense against the fundamentalist challenge to protect neoliberalism from critique. (Franck 2002). If any normative interna- The postmodern critique of institutional- tional legal project is rejected, no yardstick ism is no less acerbic than the neoliberal one: exists to evaluate international behavior of Accordingly, the vision of communitarian states, or terrorists, or anybody else. But such unity shares the vice of the ideal of a liberal critique needs to differentiate between leg- community: it excludes and marginalizes the itimate ideology critique and an extreme outsider. In addition, an international insti- moral relativism – which many, if not all post- tutionalism cannot cure the lack of legitimacy modernists reject. of its universalism. In the eyes of some postmodernists, international community is thus nothing but a “reification”11 of a theoretical The international community construct for ideological purposes. In the words between fragmentation and of David Kennedy: “[I]nternational law [is] unity not as a set of rules or institutions, but ...a group of professional disciplines in which Any comprehensive vision of the international people pursue projects in various quite dif- community will have to respond to the ferent institutional, political, and national objection that the diversity of international settings” (Kennedy 1999: 83). society cannot be captured by one single con- The reactions to September 11 by the Bush cept. Indeed, it appears that in view of the administration and many other governments diversity of contemporary international law, have demonstrated how the language of fragmentation rather than community has community may be used for curtailing civil become the key term to describe contem- liberties. The language of “either you are with porary international society (Koskenniemi us or with the terrorists” shows the utility of 2006b; Koskenniemi and Leino 2002). community for the exclusion of critique. Whereas some lament – or try to re-establish Nevertheless, the ideological (ab)use of (Dupuy 2002) – the lost unity, others embrace international law in general, and the com- the shift “from territoriality to functionality,” munity concept in particular, should not from a world of sovereign territorial states obscure the need for finding a more than sub- to a world of functional institutions limited jective basis for grounding an international legal to specific issue areas (Luhmann 1995b: 571, order which appears under increasing strain, 1997: 158–60). More radical representat- even existential threat. Maybe this is indeed ives of this view claim that the different the time for the defense of an international systems lack minimal commonality to main- legal community of some sort, based on tain any coherent overarching system of imperfect, but consensual legal rules as the general international law (Fischer-Lescano expression of, in Martti Koskenniemi’s term, and Teubner 2004: 1004–16). This chapter a “culture of formalism” (Koskenniemi argues that the perception of an increasing 2001: 494). In this vein, the true test for the autonomy of the subsystems does not lead to emergence of an international community does a complete substitution of general international not consist in the justificatory value of the law. On the contrary, in a fragmented inter- community concept, but in the inclusiveness national legal order, some sort of bond of its results. between the different parts is necessary. The More liberal mainstreamers – institution- use of the concept of the international com- alists and neoliberals alike – point to the munity is an expression of the need for such postmodernist lack of a normative vision as an overarching conception of the “whole” either resulting in an unfettered political of international law, even if it appears, for 50 9780415418768_4_002.qxd 26/11/2008 02:35PM Page 51

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obvious reasons, impossible to identify one mentalization of political decisions into issue single all-encompassing model. areas carries considerable political and demo- According to the fragmentation critique, the cratic costs. As soon as public interests are at increasing compartmentalization of inter- stake, only public decision making can claim national society requires specifically tailored to be representative of the whole of society solutions to common and indeed collective independent of a specific issue area (von der action problems of states. Legal regimes need Pfordten 2001: 128, 218). to be specific, not general. The lofty abstract- Furthermore, general international law ness of classical international law leads it to still provides the basic rules on international oblivion. Rather, international law ought lawmaking and, at least subsidiarily, on their to become divided up into different issue enforcement (Simma and Pulkowski 2006: areas: criminal law, trade law, human rights 529). The subsystems often refer back to law, etc. “General” international law has all general international law on these matters but ceased to exist, or matter (Teubner 1997; (Koskenniemi 2006b). The legal regulations Zumbansen 2001). Following the German applied in the different issue areas, from sociologist Niklas Luhmann, Gunther internet regulation to the WTO, from en- Teubner and Andreas Fischer-Lescano have vironmental treaties to the International argued that legal systems can establish them- Criminal Tribunal for the former selves in acts of “autopoiesis” (self-creation) Yugoslavia, stem from the very state or without the need of a centralizing and over- interstate bodies that proponents of fragmen- arching system of law (Fischer-Lescano and tation have dismissed before as increasingly Teubner 2004: 1009, 1014, 1032; Teubner irrelevant. Thus, a trend from territorial to 1989). Accordingly, international law cannot functional tasks will be followed by functional constitute an overarching system of univer- rather than territorial conflicts of norms. sal law because it lacks a subject in need of These conflicts, however, cannot be decided regulation. An international society or com- at the national level, but require international munity is an abstraction that does not reflect regulation. Hence the perceived need of social reality. some sort of international constitution as According to the proponents of auto- repository of conflict rules between different poiesis, each subsystem of international law issue areas (Trachtman 2006: 627; but see is itself capable of developing the relevant Dunoff 2006: 674). decision-making processes in a transparent The parsimonious character of interna- and democratic fashion. But this proposition tional law makes it quite malleable for the presupposes an analysis of the proper iden- self-ordering of regimes, within certain limits. tification of those affected by the decisions International law grounds its obligations within a given issue area. Due to the uncer- either in consent or in custom and recognizes tainty and fallibility of all consequential certain general principles, either internation- analysis, however, the effects of decisions ally or as derived from domestic legal systems in one subsystem on others will also be (Article 38 of the ICJ Statute). One may dis- indeterminate and uncertain. Therefore, the pute whether such an order fulfills Hart’s presumption underlying the general compe- requirements for a legal system (Hart 1994: tence of states – namely that most decisions 213), but it certainly provides enough leeway in the public sphere affect all citizens and must for the leges speciales of functionally differen- therefore be legitimized, directly or indirectly, tiated regimes. The main problem does not by all of them – is also valid internationally, lie in the international legal requirements whether one deals with human rights, the for binding norms, but in the limitation of environment, or trade and development. In its law-making subjects to states. Yet this turn, this demonstrates that the compart- problem is not impossible to overcome if one 51 9780415418768_4_002.qxd 26/11/2008 02:35PM Page 52

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contemplates applying the same criteria – in her local newspaper. She is not represented, namely, the legally binding nature of formal however, when the internet community is commitments and of custom accompanied allowed to regulate itself. Likewise, everybody, by a joint conviction regarding their legally not only the potential internet users, will binding nature – to the pronouncements of be affected by the success of strategies to non-state actors. Moreover, different from improve access to the internet. This would political communities, non-state actors can require, in turn, that legitimate decisions only bind themselves, not others. need to include representatives of society as It is thus not surprising that the need for a whole – and leads, in the absence of rep- legitimation beyond one single subsystem resentative international fora, to a preference leads to the acceptance of rules for the com- for local or national decisions based on mon ordering of the international realm, democratic legitimacy rather than for inter- such as human rights or the protection of the national decisions of unaccountable expert global commons. Some of these rules will be bodies. The best solution, however, would more of a formal nature – how rules are to consist in a truly international regulation that be made and to be interpreted – others will takes account of the non-systemic concerns be substantive, setting material limits to the – i.e. the integration of internet regulation self-ordering of subsystems. Ultimately, of in the general international legal regime – course, it is a matter of perspective whether which may include the delegation of com- one interprets the use of norms from other petences to the most subsidiary and most systems as an autonomous incorporation or special level (Grewlich 2006; Mayer 2004; but as evidence for the existence of one common see also Caral 2004). system. By the same token, however, recog- Because decisions made within many sys- nition of the same body of non-derogable tems profoundly influence the fate of those norms beyond the fallback rules of interna- not within the system, some general system of tional law demonstrates the “staying power” accountability and legitimacy appears neces- of an international jus cogens over and above sary. At the very least, functional systems the ordinary norms of specific legal regimes should be built by processes of a general nature (Paulus 2005; Tomuschat and Thouvenin – such as public international law treaties 2006). The main problem with the theory of – and not by custom-designed special pro- the autopoietic character of the law of new cedures. In other words, the move from legal regimes most likely relates to its lack of territoriality to functionality should not be attention for questions of legitimacy – a accompanied by a move from democracy to legitimacy that each subsystem alone cannot technocracy. Subsystems must include a provide. minimum degree of public control over the To give an example: In the Yahoo! case private exercise of power. (Reimann 2003),13 a French court decided that In the end, decision makers do not rep- Yahoo! had to block a racist memorabilia- resent functional systems, but human beings, auctioning webpage as far as it can be accessed human beings who are not – or at least in France because its display there violates sec- should not be – the objects, but the subjects tion R.645-2 of the French Criminal Code. of the system. Although each human being In this case, a solution on the basis of inter- belongs to several functional associations, she net self-ordering appears illegitimate. The is a whole, not a functionally disaggregated 80-year-old Holocaust victim is affected (and entity (von der Pfordten 2001: 125). As offended) by neo-Nazi propaganda on right- such, she needs not only functional systems wing websites even if she does not use the that serve her specific needs, but also a com- internet, but learns of the contents of the sites prehensive system of representation which is

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able to weigh different interests against each Such a result is compatible with each of other. Thus, states as representatives of the our community models, but requires import- public appear to be not at all redundant. ant qualifications. For an institutionalist, it Attempts to reduce quasi-“constitutional” entails a less hierarchical, pluralist under- questions of the ordering of international soci- standing of community. There may be com- ety to an analysis of “global administrative mon values as expressed, in particular, in jus law,” have demonstrated the broad range cogens norms. However, the profound pluralism of tasks international law has been fulfilling of the contemporary international commun- in different administrative settings, from ity prevents the emergence of a Kelsenian, administrating territory to the (de)regulation monist structure. A (neo)liberal understand- of global markets (Kingsbury et al. 2005; ing of community correctly identifies the Krisch and Kingsbury 2006a). But for its addressee of the decisions in question, valuable insights, this approach has not been namely the individual. But it may under- successful in showing that the idea of an inter- estimate law’s enmeshment into a particular national public order should be discarded. social fabric or national community that may Rather, it appears that, in reverse, the devel- prevent the application of one solution to all. opment of an international administrative Indeed, postmodernists are right to insist on law depends on the understanding of the “con- the contested nature of all values, local or stitutional” grounding of such law (but see global, and on the open, and at times com- Krisch 2006). promising or even complicit, nature of each Thus, fragmentation, whether cultural, and every legal decision. However, the legal ideological, or functional, does not do away community beyond borders provides more with the need for the intervention by the gen- guidance to local authorities and courts than eral body politic. However, it makes the a strong postmodern relativism would be pre- absence of a global public opinion, let alone pared to admit. a global democracy of a representative The international community appears nature, even more glaring. If many global thus not as a superior system encompassing problems can only be solved at the world level, all other, lesser, domestic ones. Rather, it is decisions should not be left to bureaucratic a shortcut for the direct and indirect dealings functionalists, but to representatives of of state authorities, non-state organizations broader constituencies. and businesses, as well as individual citizens, beyond state boundaries, and for the endeavor to tackle common problems, from Conclusion the protection of the environment to the prevention of genocide and famine, for which This chapter has tried to identify the basic states alone are unwilling, incapable, or ille- idea of international communitarianism, gitimate to act unilaterally. While it may be namely that international legal theory should still too early to call it a success, the endorse- not shy away from comprehensive views of ment by the heads of state and government the international society or from normative at the 2005 UN anniversary summit14 of the concepts of international community. Not as “responsibility to protect” of states towards an imperialist idea of prescribing one single their societies and individual human beings, model of international community, but as a and the need for collective action in case forum for debate, even contestation, of the it is not met, constitutes the most recent differing views on the social fabric of inter- harbinger for the advent of the international national law and of the road ahead towards community in contemporary international greater inclusivity of international law. relations.

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Notes addressed to the President of the Security Council, UN Doc. S/2003/351 (2003); Letter 1 The term “international society” is preferred dated 20 March 2003 from the Permanent by the “English school” of international rela- Representative of the United Kingdom of Great tions (see Bull 1977). Britain and Northern Ireland to the United 2 Koskenniemi has used the word “kitsch” for Nations addressed to the President of the general concepts of international law such Security Council, UN Doc. S/2003/350 as jus cogens and obligations erga omnes. His (2003). See also Lord Goldsmith 2003. critics (see Dupuy 2005; Gerstenberg 2005) 8 See UN Security Council (2003a, 2003b: 3). have largely failed to see that Koskenniemi Finally, it was the UN who legitimized the end distinguishes between the slide of the use of of the formal occupation (see UN Security these concepts into “kitsch” and, following Council 2004a: para. 2 and passim). Milan Kundera, the possibility of averting this 9 The disagreements between Teubner and danger by recognizing it (Koskenniemi 2005b: Fischer-Lescano and the present author relate 123). to the question of whether international law 3 For pre-September 11-analysis, see, e.g. provides for a minimum of value glue be- Abi-Saab 1998: 248–65; Dupuy 1986; Paulus tween different legal regimes. 2001b; Simma 1994; Tomuschat 1999: 72– 10 For a criticism from a “sovereignist” standpoint, 90; see also Allott 1990. see Anderson 2005. For a more institutional- 4 “Global war on terror” is the label attached ist view, see Alston 1997. by the Bush Jr. administration to the struggle 11 For the meaning of this term, see Carty 1991: against al-Qaeda and other terrorist groups. 67. Attempts by the Pentagon to relabel the 12 Cf. Habermas 1985: 11–12 et passim. term to “global struggle against violent extre- Similarly Brown 1992: 218, 237. mism” (see Packer 2005) appear to have failed 13 In France see LICRA et UEJF vs. Yahoo! to convince the President (see Stevenson Inc. (2000). For the quite fragmented U.S. 2005: 12). litigation drawing on questions of competence 5 Rome Statute of the International Criminal rather than substance, see Yahoo! Inc. vs. La Ligue Court, July 17, 1998, 2187 UNTS 90, 37 ILM Contre Le Racisme et l’Antisémitisme (2006). (1998) 999. The Preamble speaks several 14 See United Nations (2005c: para. 139): “[W]e times of the “most serious crimes of concern are prepared to take collective action, in a timely to the international community as a whole.” and decisive manner, through the Security 6 See also Bush 2003 (George Bush, State of Council, in accordance with the Charter, the Union Address. 39, Weekly Compilation including Chapter VII, on a case-by-case basis of Presidential Documents, 109): “Yet the and in cooperation with relevant regional course of this nation does not depend on organizations as appropriate, should peaceful the decisions of others.” means be inadequate and national authorities 7 Letter dated 20 March 2003 from the are manifestly failing to protect their popula- Permanent Representative of the United tions from genocide, war crimes, ethnic States of America to the United Nations cleansing and crimes against humanity.”

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3 Legal theory and international law

Friedrich Kratochwil1

This chapter reviews the contribution of legal theory role of shaping international relations faces to an understanding of international law and its several challenges. One is, of course, that the role in shaping international relations. It first concept of “law” will have to be defined considers some of the challenges facing such an enter- in “system-neutral” terms as otherwise the prise. While the self-description of law as the appli- identification of law with the “command of cation of relevant norms to a case is susceptible to the sovereign” (Austin 1954) disposes of the traditional “jurisprudential” modes of reflection, the problem by a simple definition (since there task of legal theory is wider as it brings into focus is no sovereign in international relations, the background conditions that are not necessarily there is no law, q.e.d.). While disposing of part of law but that are crucial for its acceptance a problem by “precise” definitions might and “legitimacy.” The theorist attempting to distin- score debating points, it is hardly illuminat- guish legal from non-legal norms needs to under- ing. It impoverishes analysis by identifying a stand various extra-legal and historically contingent specific historical configuration, i.e. that of the factors and the impact of the many wide-ranging state, with law in general – even though we socioeconomic processes encapsulated in the term had law long before the state – and by sur- “globalization.” The chapter then proceeds to exa- reptitiously collapsing the issue of law and that mine the concept of law both in terms of social theory of its “effectiveness.” and in touching on some of the fundamental dis- Similarly dangerous is to begin with a cussions within the discipline. The third section takes preconceived notion of “theory” imposing up the issue of the international “constitution” on the subject matter an inappropriate model, and the “fragmentation” of the international legal derived either from the highly stylized, order. Lastly, the fourth section examines the issues problematic model of logical positivism of “style” and narratives of progress. (Popper 1968), or a “rigorous” but limited conception of “rationality” (Searle 2003). When we try to avoid these pitfalls and turn to one of “law’s” most influential self- Introduction descriptions, conceiving of it as “ars aequi et boni” (of the equitable and the good), this Assessing the contribution of legal theory to definition places it clearly within praxis an understanding of international law and its rather than “theory.” Unless however, we 55 9780415418768_4_003.qxd 26/11/2008 02:35PM Page 56

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believe that the good and equitable can be This does not mean that a theory of law grasped intuitively, the terms seem to be exhausts itself in telling a story of how things empty place-holders rather than clear indica- came to pass, but it suggests that some his- tors. Besides, the addition of the term “ars” torical reflection is crucial for the under- (art) seems not accidental. Law is seen as an standing of law. Law is always more than activity rather than an “object” or agglomer- simply an instrument of regulating present ation of items that can be treated like natural interferences and the inevitable conflicts kinds. Rather, the “equitable” and the among self-interested actors; it is also always “good” are the result of some “artful” process part of a political project that connects the of determination. Thus, even at the time when present via the past to a future “utopia.” ontology and values were not yet strictly In short, it is one of the primary means of separated – as after the onslaught of Humean making sense in individual and collective life. skepticism – the collision of duties and the The individual who “subjects” himself to the indeterminacy of the principles all show that law in the social contract, and thus attains the decisive factors for arriving at a decision “property” and “freedom” (Rousseau 1967), and of having it accepted by the “audience” is as significant as the contract by which a might lie beyond the “law,” i.e. its histor- people becomes “one” out of different ical and sociological background conditions. “tribes” as the biblical covenant shows, or These initial remarks have several corollaries. where a “recessed” people becomes in the First, while the self-description of law as the “theory” of popular sovereignty the main application of relevant norms to a case is source of law. In the international sphere issues susceptible to traditional “jurisprudential” of self-determination as well as proposals to modes of reflection, the task of legal theory limit “sovereignty” when a government fails is wider as it brings into focus the background to “protect” the people are part and parcel of conditions that are not necessarily part of this problem (International Commission on law but that are crucial for its acceptance and Intervention and State Sovereignty 2001). legitimacy. A fourth area for critical reflection is Second, while this distinction serves as a therefore the analogies and narratives within “first cut” for separating traditional juri- which doctrinal legal arguments are embed- sprudence from a wider “theory” of law, it ded. This is particularly important in inter- should also be clear that the distinction national law where the link between law cannot be categorical, living up to the ideal and the state project has come under severe of taxonomic exclusiveness. As soon as “juri- pressure from “globalization.” The latter sprudence” has to reflect on the “sources” of seems to dissolve the most basic boundaries law, it has to transcend the “art aspect” of norm between the internal and the external, and application. Similarly, any “theory” of law between the public and the private. The issue, focusing narrowly on legal norms and their then, is less how these changes from the “bil- creation – in order to distinguish legal from liard ball” model of the international system other norms (morals, simple courtesy, or via regimes and institutions led to the present “comity”) – has to address “extra legal” mat- transnational networks, but rather how these ters, such as the Grundnorm (Kelsen 1966). changes are assessed by embedding them in Third, given that these important ele- a narrative of “progress” whereby international ments of law are historically contingent and law’s “primitiveness” is overcome. not a set of simple “functional” needs, any From these remarks follow the steps in theory of law has to move both on the ana- my argument. In the next section, I shall lytical and on the historical level. Only thus examine the concept of law both in terms of the changing structure of law and of the insti- social theory and in touching on some of the tutions it engenders become understandable. fundamental discussions within the discipline. 56 9780415418768_4_003.qxd 26/11/2008 02:35PM Page 57

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The third section takes up the issue of the arbiter and transgressor or contesting parties international “constitution” and the “frag- are “bound” by it. Symmetry, the ordering mentation” of the international legal order, principle that covered both nature and while the fourth section examines the issues society in acephalic, segmented societies of “style” and narratives of progress. is increasingly challenged by notions of “hierarchy,” i.e. by claiming to rule on the basis of “law” emanating from a transcendent The concept of law and its source. Not accidentally, “law” emerges “validity” together with “higher” religions which legitimate hierarchies and substitute for the Since the human world is not “natural,” as is egalitarian principles of segmented societies. the case with “gregarious” animals such as bees, The pharaonic empire and the genesis of a but one of artifice, the importance of language “people” accepting the “law” of god are and of “common understandings” for its cre- examples, as is the Athenian synoikismos (the ation and reproduction has been stressed living together of different tribes) where (Aristotle 1972; Searle 1995). These common through the creation of a new law (dike) “the understandings might be ontologically com- people” appear as a potential source of law pact not distinguishing between the “is” and substituting the old nomos (Meier 1990). the “ought” or between further differentia- The close connection of law and politics, tions such as morals, customs, or religion. It on the one hand, and of law and “universal” seems that for law to emerge as a distinct sym- or “natural” principles, on the other, raises bolic order two interconnected innovations several important issues. If law is to stabilize have to occur. One is that the reproductive the expectations of its “subjects” via norms, process of social order has to be revolution- this ordering can only occur if it is generally ized. In archaic understanding the taboo and accepted as “valid.” But this means that the the “damage” caused by a delict, required exact actors have to trust in a system of expecta- restitution (lex talionis). Later the notion of tions rather than rely on their own experiences an abstract normative order arises that tran- with others. To that extent “law” requires that scends not only the concrete violation but we do not “learn,” as Luhmann (1983) sug- allows for a resolution of conflicts in terms of gested, and do not adjust our strategies “new” solutions. Instead of trying to rend the accordingly. Instead, we hold on to our social fabric whole through magic or ritual decision premises, based on counterfactually activity (which might include “casting out” valid norms, even in the face of disappoint- the violator), new notions of retribution, ments. Thus, attempts to explain the emer- accountability, intention, or negligence de- gence of norms in terms of “long-term velop, even if the common normative order utility” calculations of non-myopic rational is still thoroughly conventional, i.e. based on actors in iterative bilateral bargains is often used unreflected custom (mos maiorum). for “explaining” the emergence of norms in These developments are helped by a sec- international society. However, this approach ond innovation, i.e. the development of a is highly problematic (Axelrod 1981) due to specialized cadre which handles “violations” its restrictive assumptions (no ambiguous and settles conflicts in terms of the common moves, same actors, clear payoffs in iterative, normative understandings. “Law” becomes non-decisive rounds) and the acceptance of an order where a cadre of rule-handlers rein- a “niceness-rule” in the initial round. terprets, e.g. the lex talionis so that not the The validity of the norms has little to do identical but “equivalent” restitution has to with the actual agreement among the actors be provided. Law receives its aura from the but rather with the establishment of a largely notion that it is not “made” but that both fictive presumption among them so that the 57 9780415418768_4_003.qxd 26/11/2008 02:35PM Page 58

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lawbreaker should be isolated in order to ity of law (Fuller 1964), issues of legitimacy separate his actions from the ongoing inter- can be reopened instead of being simply actions. Instead of consensus built on coali- reduced to “legality” (Habermas 1993). tions and the packaging of “interests,” the Sometimes the result seems contorted such “case” sub judice is “depoliticized” by trans- as when the International Commission on ferring it to another “forum” where the Kosovo concluded that NATO’s response was violator has to face alone the consequences “illegal” but “legitimate” (Independent Inter- of his actions. Law “works” because we have national Commission on Kosovo 2000). expectations about expectations (i.e. distin- These considerations are relevant for guish “legitimate” from “other” ones) and deciding whether international law is have, in cases of conflict, expectations about “proper law.” As suggested, what counts as what the “rule-handlers” can “legitimately” law cannot simply to be read off from the type do in deciding which expectation about of norms (such as sanction), or from the ori- expectations is the “law.” In short, law cannot gin or pedigree of a rule (Hart 1994). Such be identified with the “stability” of expecta- criteria are too narrow, leaving out “consti- tions since a Hobbesian world where one is tutive rules” that only indirectly sanction acts fighting everybody else is also characterized as “invalid,” if not done in accordance with by “stability.” This equilibrium is so stable that the stipulated provisions. Rather, what reaching the Pareto superior solution in a makes rules “legal” is their principled use in classical Prisoner’s Dilemma is impossible, application (Kratochwil 1989). It is here that contrary to Hobbes’s argument of solving the the weakness of international law appears. dilemma “by contract” (Hobbes 1968). Since there is no general jurisdiction of the Finally, given that the emergence of law International Court of Justice or any court – opens up the space for creative adjustment, except when some freestanding regimes it has to be exempted from the suspicion include compulsory jurisdictional clauses – and of manipulability in both application and the decisions of the world court have strictly legislation. The semantics developed in the speaking not precedential value, what the law European context ranges from the idea of a is remains often unclear. Legal arguments fre- “mixed constitution” (preventing a capricious quently remain entirely on the level of ex parte change of law according to shifting major- arguments without an authoritative resolution ities) to the invocation of a “higher law,” of the issues. Thus, the “closure” of the legal be it “nature” or the “ancient” constitution systems occurs not through adjudication or (Pocock 1987) and to the lawmaker’s sub- legislation but largely through doctrinal jection to “god’s” law (or customary rules that elaboration in which notions of “coherence” could not be changed). Even Bodin (1962), (Franck 1990), of justice, or of some “tran- who emphasizes the legislative power of scendental” conditions (both in a naturalist or a sovereign “absolved” from all particular in a Kantian sense) are invoked to fill the gaps. laws, limits the legislative capacity of the Such moves, however, transfer the difficulties sovereign. He cannot change customary law only to another level without ending the argu- (such as the lex salica regulating succession) or ments. Here formal distinctions such as lex lata tax the subjects without their consent. The and lex ferenda, lex specialis, lex posterior, or more sovereign’s “rule” remains firmly anchored in substantive considerations, such as the nature both tradition and natural law. Whenever these and hierarchy of the “sources,” ius cogens, obli- limits are undermined by “internalizing” gations erga omnes (Paulus 2005; Tomuschat law’s legitimacy and viewing it as the “will” and Thouvenin 2006), “community expecta- of the sovereign, countertendencies can be tions,” and “policies” provide the appropriate noticed. By advocating some form of judicial topoi. In short, the set of issues is far more review, or an inquiry into the inner moral- extensive than the truncated debate between 58 9780415418768_4_003.qxd 26/11/2008 02:35PM Page 59

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“realists” and “idealists” suggest. Neither is a particularly problematic version of the position is, however, consistently sustain- “Humean fork” problem. Since I cannot get able. Politics always has as an intrinsic part by logical inference from an “is” to an a “vision” which contains normative ele- “ought,” am I – like Burrian’s ass – condemned ments, as the “original” realist Carr (1964a) to oscillate between apology and utopia? As noticed, and neither norms nor “interest” can we have seen, this dilemma is the result of a determine choices in a causally efficient way. conception of reason that is badly adapted Are we then condemned to move endlessly to practical questions. After all, we do make between apology and utopia (Koskenniemi choices and the Humean “desire plus belief 1989), or do we have to submit to a more or model,” where only “passion” can motivate less blind decisionism à la Hobbes or Carl while reason remains eternally its “slave” Schmitt (1996)? (Hume 1948), is on all fours with our prac- This argument points to a genuine tical experience as well as with the concept dilemma that runs from the free will/deter- of “expected utility.” Here the introduction minism to the theoretical/practical reason of “sentiments,” of “imagination” which controversy and pits conception of scientific counteracts the immediacy of passions by con- explanation against methods of “verstehen” juring up “future delights,” and of “second- (Hollis and Smith 1990). Unpacking some ary preferences” are to provide the necessary of these controversies, therefore, seems (but problematic) bridging principles. necessary. All of this is hardly news and neither is the While dilemmas cannot be “solved,” they fact that law has always to move between can be circumvented when we recognize how “facticity” and “validity” (Habermas 1993). they arise and on which conceptual presup- Ultimately, no rule can “decide” a case, and positions they rest. Thus, the failure to see a “fact” by itself cannot determine its nor- how law molds decisions might be due more mative force. Nonetheless, decisions must be to some problematic theory of action that buttressed by arguments and these arguments (mistakenly) holds that only efficient cause are guided and constrained by a “style” or explanations shall count as an explanation rhetoric (Kennedy 1994b; Koskenniemi rather than to the “failure” of law per se (inde- 2000). In a way, we thereby return to a tra- terminacy of rules and principles, and condition where rhetoric is simply not a term for testability of the deontic status of norms or elocutionary flourish or “cheap talk” but for principles when applied to a “case”). But as finding non-idiosyncratic reasons for decid- the discussions about “constitutive explana- ing issues of praxis (Aristotle 1980). tions” have shown (Wendt 1999: ch. 2) not all explanations are “causally efficient” even in the natural sciences. Besides, rule-following Constitutive moments and their is not simply a function of “sanctions” but is projects frequently informed by institutions (making X count for a Y e.g. by designation some- According to traditional wisdom thing as “money”) that enable actors to pur- “Westphalia” and “sovereignty” mark the sue their goals. Furthermore, given that in transition from medieval universalism to a the social world often “multiple equilibria” territorial form of rule with internal hier- exist, “interests” are insufficient as explana- archy and “horizontal” equality among all tions since even a rational choice approach members, a conception against which all needs interest plus coordination norms for change can be assessed (Black and Falk explaining a particular outcome. 1969–1972). Modern scholarship traced this Seen from this perspective the narrowness near mythical rendition of the historical of the vision just elucidated becomes clear. It events to a particularly successful act of 59 9780415418768_4_003.qxd 26/11/2008 02:35PM Page 60

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persuasion by Leo Gross (Gross 1948). It also people do emphasize different elements of the has significantly corrected the historical and constitutional problem, use different vocab- analytical claims of the Westphalia syndrome ularies, and exhibit different sensibilities. (Osiander 1994, 2001). To that extent Beginning with the IR debates, there are Westphalia represents a “mid-point” in a two schools which develop out of opposition longer transformative process rather than a to the dominant theme of an international radical new beginning. “anarchy:” one realist and one more socio- That these criticisms do not concern logically/historically oriented. The “realist” minor corrections of historical facts but go version focuses on the role of hegemonic to the very heart of international law’s prob- powers and their role in providing at least lematique can be seen from the examina- a rudimentary order. International systems tion of sovereignty, usually considered the are therefore (weakly) hierarchical in which cornerstone of the Westphalian order. Its uneven growth of power and the ability significant “innovation” – i.e. the right of the hegemon to make some rules and to “make alliances” (ius armorum) – was, enforce them provide the dynamics. Derived however, part of the old system of self-help from a particular interpretation of exercised by the imperial “estates.” It is, Thucydides, Gilpin (1981) developed an therefore, not as Krasner (1993a) implied a elaborate “theory” of hegemonic stability. new right of emerging “states.” To read back In this sense, Ikenberry (2001) who deals the meanings of the late eighteenth and early more recently with “constitutional moments” nineteenth century is not only problematic, at the end of great wars is picking up on this it also suggests that “sovereignty” is like a thing challenge. He investigates the particular “con- that once “invented” remains rather stable as stitutional” bargains underlying the orders after an a-historical “systemic structure.” Similarly, 1815, 1919, and 1945. The common theme as Grewe (2000) has shown, the roots of inter- is that leading power(s) lock in other states in national law as “law” lie in the feudal prac- a favorable set of relations that mitigate the tices (infeodation of the pope as exemplified latter’s fears of abandonment and of domina- in the “division” of the New World at tion by imposing some self-restraint on the Tordesillas 1494) and in the encounters of the preponderant power(s) through institution- Europeans with the New World and its alizing certain “rules of the game.” Some inhabitants. The latter sparked the debate of work (Keohane 1984) addressed the puzzle de Vitoria and Sepulveda, and the subsequent why the post-war order remained relatively elaborations of Suarez. Both practices set the stable even when the lead position of the U.S. stage for discussing the “rights” of infidels and “weakened.” In particular in the international for marking off Europe as a different zone political economy, states, despite increasing (with different rules) from the “colonial” divergences in goals, did not escalate the territories. conflicts or take unilateral action so familiar It might therefore be useful to deal with from the beggar thy neighbor policies of the issues of the constitutional order, its frag- interwar period. The answer was that a priv- mentation and new articulation, by visiting ileged group of industrialized nations could various sites where these issues are debated. provide the collective goods and that robust This glimpse at developments stretching “regimes” (Krasner 1983) had developed in across the disciplines of international relations, the meantime. political theory, international law, and socio- The focus on regimes could have provided logy has to be rather sketchy. Furthermore, a new integrating “puzzle” for multidisciplin- there exist many overlaps, and one or several ary work across law, sociology, and political authors could fit in more than one category. science. But the mostly positivist orientation Thus, no neat taxonomy is possible, but of political “science” prevented the lively 60 9780415418768_4_003.qxd 26/11/2008 02:35PM Page 61

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debate to cash out in a new research program. A third site for vetting constitutional issues The old Humean fork separating strictly the is the intersection between political theory and “is” and the “ought” and claiming that only international relations. Here purposes of the “causal” explanations counted prevented an state, on the one hand, and issues of distributive appreciation of how norms and rules “mold” justice in the international arena, on the (but do not determine) decisions and how other, provided the foci. For those emphas- institutions mediate between the “is” and izing the moral purposes of states (Reus-Smit the “ought.” Thus, with the exception of 1999), notions of an international community “compliance” in which bridges between the had also to be different from those who saw “process” school of law and international rela- the state as an Oakshottian “practical associ- tions analysis were built in arms control, in ation” (Nardin 1983) designed simply to some areas of the political economy, and in enable individuals to pursue their goals with environmental issues, the main sites concerning minimal agreement on more substantive constitutional (system) questions remained notions. Rather than a fundamental concep- within their separate disciplines. tion of the good life, the primacy of the “right” The English school (Dunne 1998; over the “good” and a basic notion of liberty Linklater and Suganami 2006), our second as negative freedom is the key. The sim- site, mounted perhaps the most spirited ilarity to Rawls and the liberal tradition is attack on the anarchy problematique. The obvious, although Rawls (1971) did enlarge existence of, for example, a balance of power the set of issues by including the “difference” required both a historical/comparative and principle. This in turn spawned a debate an analytical examination. Thus, as Hume had whether the principles of justice could be remarked before, the existence of a balance applied to international arrangements. A of power was far from universal, and systems lively debate, largely unnoticed by interna- differed widely according to the institutional tional lawyers, ensued about different redis- structures they had developed historically. tributive schemes and the limits of state Neither messengers nor spies functioned like autonomy for which the journals Philosophy diplomats, even though all of them served cer- and Public Affairs and Ethics and International tain information functions (Wight 1977). It Affairs became the main outlets. Among was perhaps a pity that the analytic discussion lawyers, who eschewed such de lege ferenda was not as lively as the one of the systems of proposals, the debate focused instead more on states, which ironically reached its crescendo the limits to state action and the emergence at a time when the state project was already of a ius cogens (Verdross and Simma 1984) and under siege. Growing interdependencies the obligations erga omnes (Tomuschat and had made it increasingly difficult to “cage” Thouvenin 2006). economic forces through the fetters of a This leads us to a fourth site, i.e. the “move “national economy” and to shield oneself from to institutions.” Starting with the recognized the forces which impacted at home although need of further development of interna- they were created elsewhere. Already in the tional law, the focus on codification and the interwar period states tried through the “peaceful settlement of issues” had been extension of jurisdictional claims to “protect” characteristic of the Hague system. It had been themselves (vide Alcoa), but these infringements powerfully shaped by a general cultural had to be “balanced” by comity. Now, new belief in technical solutions to international designs were required. The dense network problems and by the recognition to attend of “multilateral” international organizations to problems resulting from technological (Ruggie and Kratochwil 1986) made asser- change. It counteracted the traditional positions of exclusive “domestic jurisdiction” tivist preoccupation with the “will problem- difficult to maintain. atic” of law that had been part of the state 61 9780415418768_4_003.qxd 26/11/2008 02:35PM Page 62

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project and of “sovereignty.” It had led to power” without another world war. But no the quandary that from this perspective no challenge to the “universal” order could be “higher law” could be conceived and only the managed unless the great powers themselves self-limitation of the sovereign could explain were institutionally bound to uphold that and justify the existence of an international order and to overcome their collective action legal order ( Jellinek 1882). problems. The design solutions consisted in The technocratic vision of “functionalism” the adoption of the veto, the institutional- attempted to replace politics by tying claims ization of the great powers in the Security to rule to particular forms of knowledge Council, and a variety of “multilateral” regu- and social strata. The claim that modernity latory organizations linked to the U.N. needed technical intelligence, instead of framework. Even if with the onset of the cold theology or philosophy, becomes oddly war the hopes for a “global” order were dis- reconfigured in the “move to institutions” appointed, the organizational blueprint pro- in the aftermath of the Second World War vided the framework for the “free world” (Kennedy 1987). Thus the League was not (nobly ignoring the developing world). only to mark a decisive break with the “non- These developments were in the U.S. institutionalized” past but it insisted that a accompanied by a significant shift from the peaceful order required a new organizational “settlement” of disputes (adjudicative per- design, a theme that became even more spective) to one emphasizing the problem- important after the Second World War. It was solving capacities of law. In Europe, on the one of the lessons of the interwar years that other hand, the “unity” of the legal system – both “high politics” and “low politics” had as in the case of international law without the to be institutionalized since the neglect of the existence of a rule of recognition as a cap- “low politics” of welfare had been the reason stone – continued to dominate the discussion. for the rise of fascism and the collapse of Arguments in favor of a unitary conception the League. The bitter truth was that the old of law were opposed by a dualistic concep- recipes of laissez faire were no longer adequate, tion along the internal/external divide. and that the changes in the configuration of American postwar legal scholarship emphas- politics required the simultaneous solution to ized process and was united in its criticism of both welfare and security issues (Kratochwil formalism as practiced both by naturalists and 1998). Similarly, old hopes that the pro- positivists. This can be seen most clearly in gressive development of international law legal scholarship that developed out of the in conjunction with public opinion would application of the Ehrlich and Sacks process suffice, and that by “outlawing” war or approach (O’Connell 1999) to international threatening sanctions a new world order problems by Chayes (Chayes and Chayes could be forged, had been thoroughly dis- 1995). But, an anti-formalist stance paired with appointed. Besides, the rise of socialism and an emphasis on problem solving went farther. communism introduced new welfare goals as Here the New Haven school of McDougal proper domains for state action. It required and his associates represented one side of the regulatory rather than simple laissez faire spectrum with the Columbia school at the regimes at both domestic and international other end. The Yale school focused on levels as well as their mutual compatibility. “policy” and the processes of claims and The functioning of a “collective security” counter claims by which decision-makers system presupposed the continuation of the pursue their goals, whereby the goal of Alliance against the axis powers (the original human dignity allows for the appraisal of the United Nations), not only as an insurance normative status of an advanced claim. The against revanchism but simply because peace Columbia school around Friedmann (1964), could not be secured against any “great Henkin (1979), and Schachter (1985) 62 9780415418768_4_003.qxd 26/11/2008 02:35PM Page 63

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emphasized more the centrality of rules in In addition, two other topics have been: enhancing cooperation in an ideologically the judicialization of international politics divided world while at the same time argu- and the “fragmentation” of the international ing against the resurgence of positivism and legal order given the 125 existing international the shibboleth of “sovereignty.” Thus, while tribunals. In a sense, both topics rehearse the Columbia school wanted to create a in a new way the old Weimar agenda normative order transcending the policy (Koskenniemi 2000: 29f.) that pitted differences among the antagonistic “blocs,” Morgenthau and Schmitt, on the one side, the Yale school was much more influenced against the formalism of Kelsen, on the other by the tradition of American legal realism side. The former accorded primacy to polit- and much more favorable towards sovereign ical decisions and claimed that political autonomy, notwithstanding its universalist decisions ought to be “non-justiciable” rhetoric (McDougal 1955). Here only the (Morgenthau 1929). In international law, new approaches of Koh (1996b) and Higgins this thesis led to Sir Hersch Lauterpacht’s (1994) provided an alternative. (1933) argument “establishing” the justicia- The last site for constitutional discussions bility of all legal disputes. Nonetheless, in both is the intersection of legal practice and soci- theory and practice Morgenthau’s victory ological theory. Here three main themes can can be gathered not only from the dominance be identified, all of which are loosely con- of “realism” and instrumentalization of law nected with the problem of globalization. by political projects, but also in the sluggish The emergence of global networks among adherence to the “optional protocol” of the “disaggregated” states (Slaughter 2004b) or ICJ and to the inclusion of self-defining new patterns of cooperation between public “reservations” (see the Connolly reservation and private actors become respective foci for the U.S.). (Cutler 2003; Hall and Biersteker 2002). In the legalization debate for which the spe- While the new organizational form of net- cial International Organization issue is perhaps works gives these inquiries an unifying theme, the most prominent example, the seemingly the “disaggregated” state version emphasizes neutral specification of three key concepts (pre- still “public” power for the solution of cision, delegation, and obligation) was to guide problems created by a quantum leap in inter- an interdisciplinary debate among international dependencies. This approach adds to the lawyers and political scientists. While perhaps familiar argument of the “internationalization the concept of “obligation” linked directly of the state” (Cox 1981) and of multilateral- to the debates of “hard” and “soft law,” the ism as its organizational form. They engage reasons for choosing the other two concepts in boundary spanning exercises of informa- remained unclear, as they were not system- tion sharing and regulatory activities after the atically related to legal theory (Finnemore and disappearance of the unified state. Such an Toope 2001a). Nevertheless, the choice of the activity remains, however, a “technocratic vocabulary was far from innocent. The term model” of cooperation rather than one in “delegation” immediately suggests the con- which “the people” can more effectively tractarian basis of a “liberal” conception of law, exercise their voice. Whether such defects i.e. free and independent actors consenting to can be remedied by the inclusion of private be subject to adjudication. As if much of inter- actors or elements of civil society (as e.g. national law were not customary or applied in World Bank projects) remains also doubt- by national courts which “double up” as insti- ful, given the difficulties in identifying the tutions of the international legal order (Scelle relevant stakeholders and the vast asymme- 1932–1934)! Here courts have both fact and try in information between outsiders and rule discretion. To that extent the remarks of insiders. one of the authors seems rather strange: “to 63 9780415418768_4_003.qxd 26/11/2008 02:35PM Page 64

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paraphrase Clausewitz, law is a continuation regime (Vienna Convention of Diplomatic of political intercourse with the addition of Relations) exhaustively regulated the issue other means” (Abbott, et al. 2000: 419). area (ICJ 1979: 40). Similarly, the ICTY Tadic Similarly problematic is the emphasis on decision highlighted the problem of contra- “precision.” It is obviously derived from a dictory judgments for the international rule misleading conception of “science” in which of law. While, of course, no regime can be terms have meaning by their reference. entirely freestanding since any interpretation “Precision” then actually “measures” the of the applicable rules will always have to refer match between the concept and the “world to the general principles of international out there.” While this is already a highly mis- law (Simma and Pulkowski 2006) such as the leading conception of scientific procedures law of treaties etc., different regimes often – many key theoretical terms have no match develop their own “imperialist” reading of a at all – it is totally inappropriate for law. Even controversy, especially if they possess appro- the clearest statement of a rule cannot decide priate dispute-settling mechanisms, such as its own application! Both the open texture of the WTO. Could the WTO invalidate sanc- rules – forget that in most decisions indeter- tions taken by a state which is a member of minate (imprecise) principles rather than the Kimberly diamond agreement while the rules do most of the justifying and explain- complaining (sanctioned) state is not? ing – and the difficulties of interpretation The traditional notion of dealing with self- have been amply discussed in legal theory. contained regimes in terms of the lex specialis Does the “clear” injunction “No dogs on the supervening general legal principles suddenly escalator” apply only to dogs, but not to appeared problematic (see also Act 55 of the “Ulysses,” my (single) dog accompanying ICL articles on state responsibility). Given that me? Does it apply also to a cat or a pet puma, the lex specialis argument depends also on the or to a boa constrictor which lazily hangs construal of a single legislative will but that around my neck and is arguably not “on” the under modern conditions treaties and custom escalator? In short, the idea that norms can be increasingly are the result of particular bar- treated in a context-free fashion, and that inter- gains and package deals, the presumption pretations need not constantly move from of a unified will of a state across various facts to norms and higher order principles and issue areas is hardly convincing. Judges have back, is a myopia of social “scientists” who therefore to decide on the basis of extrane- think that their methods apply in a “one size ous factors rather than on ascertaining the will fits all” fashion. of the parties. After all, the law of presumption Within the internal debate among inter- belongs clearly to municipal law. national lawyers on “fragmentation,” the ICJ When faced with inconsistencies of deci- decision in the Teheran hostage case played sions, norm collisions, or doctrinal disagree- a significant role as here the notion of a free- ments, the tendency of “law” is to fall back standing or self-contained regime was raised on a leges hierarchy and thus on a domestic (ICJ, United States of America vs. Iran, ordering scheme. The question remains, 1979). Similarly, the remarks of the ICJ pres- however, whether such a visceral response does ident on the danger of a fragmentation of justice to complexities of legal ordering in the legal order, and finally the charge to the a post national world. Strangely enough, International Law Commission to study the efforts to counteract fragmentation by issue (International Law Commission and domestic legal instruments might be a bit too Koskenniemi 2006) represent some of the optimistic (of what can be achieved) and too main markers of this controversy. pessimistic (because of being too restrictive) In the hostage case the court had largely at the same time. Especially if we no longer to decide whether the existence of a special simply focus on law via “compliance and 64 9780415418768_4_003.qxd 26/11/2008 02:35PM Page 65

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sanction” but understand it as a system of order is still “primitive” (see even Kelsen 1960) communication possessing a logic of its own, and needs to be remedied through decisive we understand this paradox. judicial and legislative action. Actually, Since the law creation process no longer nothing could be farther from the truth. The is limited to states and their internal and international legal system is quite a soph- external law-making capacity (legislation or isticated assembly of practices (institutional contractual undertakings, declarations) it has rules), and primary and secondary rules been opened up to communicative processes (sources) that relies on conceptual distinctions of all kinds. Normative expectations do not unknown to systems of primitive law (dis- solely emerge from state practice but result tinction between ethics, customs, public and increasingly from the activities of other private etc.). When compared to this, the inter- social systems (Luhmann 1995b; Teubner national political system is truly “primitive” in 1997). The role of the media and of social relying on both bargaining and force with no movements using spectacular events to mediating representative institutions that can “scandalize” the public and initiate a process both claim effectiveness and legitimacy. It of normative change comes here to mind, seems that the hope of improving the legal counteracting strict pessimism. Whether system by imitating the experiences of the state these influences of civil society on the pro- – by creating courts or new legislative initi- cess of law-making provide a viable alternat- atives – while being blind to all the enabling ive to the traditional legal order remains, of background conditions that determine the fate course, to be seen. In other words, the frag- of the rule of law – betokens a professional mentation of law is more radical than often myopia of considerable proportions. suggested since it reflects the multidimensional It is here that the constitutional metaphor fragmentation of global society. The functional becomes strained in the international legal dis- differentiation remains, however, overlaid course. While the ICJ in the Lockerbie case by territorial segmentation. To that extent (1992: 160ff.) speaks of any action taken by the optimism of “domestic” solutions seems a U.N. organ as being subject to assessment unwarranted. Consequently, fragmenta- in terms of a “co-ordinate exercise of pow- tion cannot be combated directly by some ers” analogous to a constitution, it is hardly ordering of “public” international law, since surprising that in the absence of a legislative public law itself has lost much of its ordering body – not to speak of the enforcement prob- function. Perhaps the best we can hope for lem – everything in the international arena is the compatibility of the fragments through falls to the judiciary. But it is also hard to see constant “translation” and adjustment how outside “the profession” such arguments (Fischer-Lescano and Teubner 2004). will resonate and lead to acquiescence. This is not only because many of the institutions familiar from domestic political process, such Theoretical reprise: elements of as parties aggregating and vetting interest, are style, narratives, and the role of missing. The problem is that “constitutional” the “professional” politics by attempting to place an issue “above” normal politics and thus induce societal For someone looking at these debates from acquiescence, hardly ever works that way even the outside there is an odd disconnection in the domestic arena (Michelman 2003). between law and politics. Thus, the vision Thus, there is an inherent paradox in of a world constitutional moment or the that “constitutional politics” cannot achieve efficacy of a constitutional discourse might be what it pretends, i.e. provide “the legitimacy far too optimistic. The subtext here is that quite of higher law – irreversible, irresistible and different from politics the international legal comprehensive” (Howse and Nicolaïdis 65 9780415418768_4_003.qxd 26/11/2008 02:35PM Page 66

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2003: 74). The idea that constitutionalism can and what is to be done? Perhaps indeed only lift mankind into an apolitical space ending “translations” remain and the international all disagreements because “ultimate values” lawyer can no longer serve as “rector” à la demand respect and are able to silence objec- Wolff (Onuf 1998) to shape discourse and tions is utterly mistaken, as it fails to notice projects. Furthermore, given that with the that any reference to those “values is itself death of god, the “people” became the immensely and intensely political” (Klabbers main source of legitimacy, how can any legal 2004: 54). Nevertheless, two common ontology – after the “deconstruction” of themes among international lawyers are the historical and concrete people, and the sub- fear of political interference with law and that sequent efforts to deny moral (and often of a constitutional remedy. It ranges from even legal) significance to particular institu- Petersmann (2002) who wants to protect tions – still mediate the tension between against overarching and short-sighted decisions the particular and the universal? Strangely of governments which could ruin the world enough, the “rights of man” have become trading system to Cass’s (2005) argument that more recessed – and not for chauvinistic the WTO’s appellate body could become reasons I suspect – so that the concept of a “constitutional order.” By “doctrine man or woman as moral agents no longer amalgamation,” a new style of justifications dominates the discourse. The actor no reflecting deeper “constitutional” values is longer claims rights in virtue of his or her emerging. There is also Franck’s attempt to personhood but s/he becomes the place- replace politics with law, but not a law of codes holder for ascribing rights. Given also the offi- but with a practice of “balancing between cial agnosticism about “the good,” anything the imperatives of constitutionalism and desirable, or considered valuable, becomes in flexibility” (Franck 1992: 128). In the latter this procedural world a subjective human case, we nearly encounter the Aristotelian right. Thus, we have a “right to democracy” spoudaios, characterized by a particular style of (Franck 1992) or a “clean environment” reflection and attitude (hexis). (Tomuschat 2003). This leads to two further questions: one The popularity of these slogans notwith- paradoxical, one more speculative. The standing, arguing for a “right to democracy” paradoxical question concerns the issue why is simply committing a category mistake. in the face of the experiences in the consti- Democracy is a way of organizing a particu- tutional law discourse, this project enjoys lar polity; it does not constitute a “right” that such prestige in international legal thought. accrues to a person qua human being. Might it be that after the hopes placed in Similarly, the right to a clean environment expertise (functionalism and multilateral – aside from containing the last flickers of management) the self-confidence of the the religious idea of man as the “crown of international “professionals” has suffered? creation” (species chauvinism) – is mislead- Both policy failures (poverty reduction, fining since the inviolability of nature is not at ancial crises) and de-legitimization attempts issue, but a specific use of natural resources by social movements have damaged the aura within a particular social and political project of a self-justifying “special knowledge” (Haas 1975). (Kratochwil 2006). Is it the dialectics between Another gambit is to utilize the narrative legality and legitimacy which explains this of progress. It creates through the division of phenomenon? a “before” and “after” two points through The more speculative question concerns the which we can lay a straight line leading to an following: how is a “spoudaios” possible in all encompassing end state. All the differences the absence of an ontological order or some of politics can then be discounted since they “ultimate” source that declares what is the case are just “reactionary” or not yet fulfilled 66 9780415418768_4_003.qxd 26/11/2008 02:35PM Page 67

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aspirations. What is important and what itics gets sedimented in specific historical gives legitimacy to a decision is whether institutional structures to one of instru- it “serves” this ultimate goal. We know what mental reason. Here the virtually exclusive to do when we know whether or not we focus on “dispute settlement” among are on the side of “progress!” That such a “rational actors” and a rather disconnected “theory” is likely to end up in imperial pre- “universal” goal towards which everything is tensions (Goldsmith and Posner 2005) or evolving provide the parameters. It would be in coalitions of the willing is hardly news. a lamentable outcome indeed, if the strange The problem lies, however, far deeper. combination of “universalism” and “instru- As we see from Locke’s famous narrative: mental reason” which one notices lately in the “[I]n the beginning the whole world was international legal discourse would not only America” (Locke 1689: para. 49), such a discount the “local” (where most of us still gambit is not at all innocent. It is not only live) but also deprive us from finding mean- dividing the world in a before and after, but ing in acting together politically in order to it valorizes the “after” by telling how the shape our destinies. “primitive stage” was soon overcome. As such it served to silence not only the resistance of the “primitives” and justified their dispos- Note session. It also reduces law from an effort to create meaning by an open-ended historical 1 I gratefully acknowledge the research help of process in which the pluri-vocality of pol- Hannes Peltonen.

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4 Soft law

Dinah Shelton

The conventional understanding of international expressly recognized general international law sees its “legal” nature as deriving from the law-making procedures. consent of states to binding obligations. However, In contrast to the agreed sources listed in states have engaged in a host of other normative the ICJ Statute, state practice in recent years, commitments through means such as declarations inside and outside international organiza- and General Assembly resolutions that, while tions, increasingly has placed normative not having the binding force of formal treaties, statements in non-binding political instruments may still have law-like consequences of the kind such as declarations, resolutions, and programs that the term “soft law” has been coined to of action, and has signaled that compliance is describe. In practice, the distinction between expected with the norms that these texts con- “hard” and “soft” law may become increasingly tain. Commentators refer to these instruments blurred over time. as “soft law” and debate whether the practice of adopting them constitutes evidence International law is a largely consensual of new modes of international law making. system, consisting of norms that states in States, however, appear clearly to understand sovereign equality freely accept to govern that such “soft law” texts are political com- themselves and other subjects of law. Inter- mitments that can lead to law, but they are national law is thus created by states, using not law, and thus give rise only to political procedures that they have agreed are “legis- consequences (Raustiala 2005: 587). The lative,” that is, through procedures identified distinction may not be as significant as by them as the appropriate means to create expected, however, because such commit- legally binding obligations. These sources ments have proved sometimes to be as of law, at least for the purpose of resolv- effective as law to address international prob- ing interstate disputes, are identified in the lems. Moreover, soft law norms may Statute of the International Court of Justice harden, being frequently incorporated into (ICJ). Article 38 of the ICJ Statute directs the subsequent treaties or becoming customary Court to decide cases submitted to it primarily international law as a consequence of state through applying treaties and international practice. Within states, the norms contained custom.1 The ICJ Statute governs the Court, in non-binding instruments may provide a but it is the only text in which states have model for domestic legislation and thus 68 9780415418768_4_004.qxd 26/11/2008 02:35PM Page 69

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become legally binding internally, while norms and the relative importance among remaining non-binding internationally. them. A law perceived as legitimate and fair is more likely to be observed. Soft law is a type of social rather than legal What is “soft law?” norm. While there is no accepted definition of “soft law,” it usually refers to any written In any community, efforts to resolve social international instrument, other than a treaty, problems do not invariably take the form of containing principles, norms, standards, or law. Societies strive to maintain order, pre- other statements of expected behavior. Soft vent and resolve conflicts, and assure justice law “expresses a preference and not an obli- in the distribution and use of resources not gation that states should act, or should refrain only through law, but through other means from acting, in a specified manner” (Gold of action. Issues of justice may be addressed 1996: 301). This “expressed preference” for through market mechanisms and private certain behavior aims to achieve functional charity, while conflict resolution can be pro- cooperation among states to reach international moted through education and information, as goals (Lichtenstein 2001: 1433). well as negotiations outside legal institutions. Some scholars alternatively or also use the Maintenance of order and societal values term “soft law” to refer to weak or indeter- can occur through moral sanctions, exclusions, minate provisions in a binding treaty.2 The and granting or withholding of benefits, as practice of states indicates that this use of well as by use of legal penalties and incen- the term “soft law,” referring to the more tives. In the international arena, just as at hortatory or promotional language of certain other levels of governance, law is one form treaty provisions, is the more appropriate of social control or normative claim, but basic usage. Treaties are binding and contain legal requirements of behavior also emerge from obligations, even if specific commitments morality, courtesy, and social custom reflect- are drafted in general or weak terms. It is a ing the values of society. They form part of misnomer to refer to non-binding instru- the expectations of social discourse and comments as “law,” soft or hard, although many pliance with such norms may be expected and scholars commonly do so and, for reasons of violations sanctioned. convenience and simplicity, the term is used Legal regulation, however, has become herein as a synonym for normative statements perhaps the most prevalent response to social contained in instruments that are not legally problems during the last century. Laws binding. reflect the current needs and recognize the Soft law comes in an almost infinite vari- present values of society. Law is often ety. Many non-binding normative instru- deemed a necessary, if usually insufficient, basis ments emerge from the work of international for ordering behavior. The language of law, organizations, which in most instances lack especially written language, most precisely the power to adopt binding measures. The communicates expectations and produces Security Council, under Article 25, is one of reliance, despite inevitable ambiguities and the few international bodies conferred the gaps. It exercises a pull toward compliance by power to bind states and demand compliance its very nature. Its enhanced value and the with the measures it adopts.3 The General more serious consequences of non-conformity Assembly, in contrast, is granted authority lead to the generally accepted notion that in the UN Charter to initiate studies, discuss fundamental fairness requires some iden- matters, and make recommendations.4 Thus, tification of what is meant by “law,” some whether the General Assembly denominates degree of transparency and understanding of a text a declaration, set of guidelines, or the authoritative means of creating binding charter, the text remains a recommendation. 69 9780415418768_4_004.qxd 26/11/2008 02:35PM Page 70

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Nonetheless, the choice of titles is signi- the Treatment of Prisoners, adopted by the ficant. A 1962 memorandum of the UN First United Nations Congress on the Office of Legal Affairs called a declaration “a Prevention of Crime and Treatment of formal and solemn instrument, suitable for rare Offenders, 1955, and approved by the UN occasions when principles of great and last- Economic and Social Council in 1957, is an ing importance are being enunciated.”5 The example of a primary declarative text. practice of the General Assembly confirms that Secondary soft law includes the recom- states call a text a “declaration” in accordance mendations and general comments of with this interpretation. international supervisory organs, the juris- Common forms of soft law include norm- prudence of courts and commissions, decisions ative resolutions of international organiza- of special rapporteurs and other ad hoc bod- tions, concluding texts of summit meetings ies, and the resolutions of political organs of or international conferences, recommenda- international organizations applying primary tions of treaty bodies overseeing compliance norms. Most of this secondary soft law is pro- with treaty obligations, bilateral or multilat- nounced by institutions whose existence and eral memoranda of understanding, executive jurisdiction is derived from a treaty and who political agreements, and guidelines or codes apply norms contained in the same treaty. of conduct adopted in a variety of contexts. Secondary soft law has expanded in large In some instances, a given text may be hard part as a consequence of the proliferation law for some states and soft law for others. of primary treaty standards and monitoring A decision of the European Court of Human institutions created to supervise state compli- Rights or the Inter-American Court of ance with treaty obligations. Sometimes the Human Rights, for instance, is legally bind- underlying treaty is quite general in nature. ing on the state or states participating in the The Charter of the Organization of Amer- proceedings but not on other states parties to ican States provided the framework for the the relevant human rights treaty. The juris- OAS General Assembly to constitute the prudence of both courts is authoritative and Inter-American Commission on Human may be preclusive or persuasive in domestic Rights and confer on it the authority to super- courts of all member states, but it is not vise compliance with the rights and duties legally binding on them. It is also a feature contained in the American Declaration of of soft law that it may address non-state the Rights and Duties of Man, including the actors, including business entities, international power to make recommendations to spe- organizations, non-governmental organizations cific states. Thus, an institution established and individuals, while treaties rarely impose by soft law received a mandate to apply pri- direct obligations on any entities other than mary soft law to create secondary soft law, states. despite scant mention of human rights in the As a general matter, soft law may be cat- Charter. egorized as primary and secondary. Primary Treaties may be distinguished from non- soft law consists of those normative texts not binding instruments by specific language, adopted in treaty form that are addressed to especially when the former contain clauses the international community as a whole or concerning ratification or entry into force. to the entire membership of the adopting insti- Nonetheless, the characteristics of each tution or organization. Such an instrument type of instrument are increasingly difficult may declare new norms, often as an intended to identify. In some instances, states may precursor to adoption of a later treaty, or it express “reservations” to parts of a declara- may reaffirm or further elaborate norms pre- tion, as the US did with respect to the right viously set forth in binding or non-binding to development in the Rio Declaration on texts. The UN Standard Minimum Rules for Environment and Development.6 The UN 70 9780415418768_4_004.qxd 26/11/2008 02:35PM Page 71

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Guiding Principles on Internal Displace- countermeasures in the law of state respon- ment7 has a title that suggests the contents sibility. A government that recalls its of the instrument are non-binding, but the ambassador can either be expressing political introduction to the principles says that they disapproval of another state’s policy on an “reﬂect and are consistent with” international issue, or sanctioning non-compliance with a human rights and humanitarian law and they legal norm. Terminating foreign assistance “identify rights and guarantees” (Abbott also may be characterized either way. Even 2007: 166). The quoted introductory lan- binding UN Security Council resolutions guage appears to refer to treaty and custom- based on a threat to the peace do not neces- ary law, but it has also been suggested that sarily depend on a violation of international the Guiding Principles actually contain three law. different types of norm: The most heated debate surrounding soft law concerns whether binding instruments and 1 those restating legal rules binding as non-binding ones are strictly alternative or treaty or customary international law whether they are two ends on a continuum 2 new applications of existing general legal from legal obligation to complete freedom of rules, adding substantive content action, making some such instruments more 3 wholly new principles created by ana- binding than others. If and when the term “soft logy to existing norms (Abbott 2007: law” should be used depends in large part on 169). whether one adopts the binary or continuum view of international law. To many, the line Similar differentiation may be made among between law and not-law may appear the norms contained in other non-binding blurred, especially as treaties on new topics instruments. of regulation are including more “soft” obli- In another blurring of the distinction gations, such as undertakings to endeavor to between law and non-binding norms, super- strive to cooperate. In addition, both types of visory organs have been created recently to instrument may have compliance procedures oversee compliance with some non-binding that range from soft to hard. instruments. The UN Commission on Sus- Some international judicial and arbitral tainable Development, for example, supervises decisions have contributed to the debate. implementation of Agenda 21, the plan of One decision referred to UN resolutions as action adopted in 1992 at the Rio Con- having “a certain legal value” but one that ference on Environment and Development. “differs considerably” from one resolution In other instances, states have been asked to to another.8 Various factors, including the submit reports on compliance with declara- language, the vote, the drafting history, and tions and action programs, in a manner that subsequent state practice come into play in mimics if it does not duplicate the compli- deciding on the value of a particular norm- ance mechanisms utilized in treaties. ative instrument.9 Some scholars distinguish hard law and soft law by afﬁrming that a breach of law gives rise to legal consequences while breach of a The relationship between soft political norm gives rise to political con- law, treaties and custom sequences. Identifying the difference in practice is not always easy, however, because Despite their limited juridical effect, non- breaches of law may give rise to politically binding instruments have an essential and motivated consequences and failure to im- growing role in international relations and plement non-binding norms may result in in the development of international law. retaliatory sanctions indistinguishable from In practice, non-binding norms are often the 71 9780415418768_4_004.qxd 26/11/2008 02:35PM Page 72

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precursor to treaty negotiations and sometimes for non-binding normative instruments also stimulate state practice leading to the forma- or alternatively may be considered a form of tion of customary international law. In fact, state practice. soft law has many roles to play in relation to The interplay between soft law and cus- hard law. A non-binding normative instru- tom is identified in the first three enumera- ment may do one or more of the following: tions just given. Some soft law texts purport to do no more than set down in written 1 codify pre-existing customary interna- form pre-existing legal rights and duties. tional law, helping to provide greater The commentary to the UN “Basic prin- precision through the written text ciples and guidelines on the right to remedy 2 crystallize a trend towards a particular and reparation for victims of gross violations norm, overriding the views of dis- of international human rights law and serious senters and persuading those who have violations of international humanitarian law,” little or no relevant state practice to approved by the Commission on Human acquiesce in the development of the Rights10 and endorsed by the General norm Assembly in 2005,11 claims that the principles 3 precede and help form new customary and guidelines contain no new norms, but international law instead reflect existing law scattered among 4 consolidate political opinion around a large number of treaties and widespread the need for action on a new problem, state practice. Other instruments may contain fostering consensus that may lead to a combination of pre-existing law and new treaty negotiations or further soft law developments. It is rare that a non-binding 5 fill in gaps in existing treaties in force instrument is entirely codification or new 6 form part of the subsequent state prac- norms. tice that can be utilized to interpret Soft law texts also may be drafted to con- treaties solidate a trend towards changes in custom- 7 provide guidance or a model for ary law or stamp with approval one among domestic laws, without international conflicting positions on a legal issue. Efforts obligation in the economic arena to make such 8 substitute for legal obligation when changes, from the Declaration on Permanent ongoing relations make formal treaties Sovereignty over Natural Resources,12 to too costly and time consuming or the General Assembly Declaration on the otherwise unnecessary or politically Establishment of a New International unacceptable. Economic Order13 and the Charter of Economic Rights and Duties,14 demonstrate Binding norms have a potentially large that these efforts can be highly contentious impact on the development of international and not always entirely successful. For the soft law. Customary law, for example, one of law texts to become hard law, conforming state the two main sources of international legal practice is needed among states representing obligation, requires compliance (state practice) different regions and the major legal, economic not only as a result of the obligation, but and political systems. as a constitutive, essential part of the process Compliance with entirely new non- by which the law is formed. In recent years, binding norms also can lead to the formation non-binding instruments sometimes have of customary international law. In recent provided evidence of the emergent custom years, non-binding instruments sometimes and have assisted to establish the content of have provided the necessary statement of the norm. The process of drafting and voting legal obligation (opinio juris) to precede or

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accompany state practice, assisting in estab- as “a common standard of achievement” that lishing the content of the norm.15 A declara- could lead to binding agreement. In fact, tion may reflect an ideal, moving away from in the human rights field, nearly all recent emphasizing state practice to greater reliance multilateral conventions at the global level have on opinio juris (Roberts 2001: 765). Whether been preceded by adoption of a non-binding a declaration provides a statement of what declaration. customary law is or should be cannot be In environmental law, Principle 21 of the determined by reference to mandatory or Stockholm Declaration on the Human En- permissive words alone, although language vironment,17 which is repeated almost verbatim is important as a reflection of the drafters’ in the Rio Declaration on Environment and intent. Declarations, however, often reflect a Development, is included not only in the deliberate ambiguity between actual and preambles to many multilateral treaties, but desired practice and are designed to develop also appears in Article 3 of the Convention the law. Notably, the recent practice that on Biological Diversity.18 Thus, the adoption seems to rely on statements of obligation of non-binding norms can and often does lead rather than conduct allows more states to to similar or virtually identical norms being participate in the formation of the law than codified in subsequent binding agreements. would be the case if conduct alone were rel- Indeed, the process of negotiating and draft- evant. An example of this can be seen in the ing non-binding instruments can greatly development of the law of outer space, facilitate the achievement of the consensus which occurred when few states engaged in necessary to produce a binding multilateral space activities, but many more particip- agreement. This was the case in the last ated in the drafting and adoption of the decade with the Rotterdam Convention on Declaration of Legal Principles Governing the Prior Informed Consent (1998).19 Activities of States in the Exploration and Use The next category considers that non- of Outer Space.16 This process “democratized” binding instruments act interstitially to com- the law-making process and precluded the rules plete or supplement binding agreements. being made solely by the only two powers Sometimes this is foreseen in the agreement active in space at the time. itself, e.g. the Bonn Convention on The relationship between soft law and Migratory Species of Wild Animals (1979),20 treaties is also complex. In probably the the Antarctic Treaty (1959)21 regime, and large majority of instances, soft law texts are agreements of the IAEA concerning non- linked in one way or another to binding instru- proliferation of nuclear weapons.22 In other ments. First, as the fourth category enumer- instances, the non-binding accords may ated earlier summarizes, soft law can initiate appear relatively independent and freestand- a process of building consensus towards ing, but, on examination, make reference binding obligations needed to resolve a new to existing treaty obligations, as is the case, problem. Examples of this are seen in the for example, with the Helsinki Accords that preambles to numerous multilateral agreements led to the Organization for Security and concluded in recent years, which refer to Cooperation in Europe (still lacking a treaty relevant non-binding normative instruments basis) and the Zangger Committee for multi- as precedents. In the field of human rights, lateral weapons control. for example, regional and global treaties Using non-binding texts to give auth- almost without exception invoke the oritative interpretation to treaty terms is Universal Declaration of Human Rights as a particularly useful when the issues are con- normative precursor. The Declaration itself tentious and left unresolved in the treaty itself. states by its own terms that it was intended Article 8( j) of the Convention on Biological

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Diversity, which concerns respect for an authoritative interpretation of the UN traditional knowledge as well as access to Charter’s human rights provisions it is bind- it and the sharing of benefits from its use, is ing on all UN member states; if it is customary one example where fundamental disagree- international law, it binds even those states that ments resulted in a provision that is complex, are not members of the UN. ambiguous and close to contradictory in its Soft law norms also may become “hard” terms. Later negotiations during the Con- law through adoption by states in their ferences of the Parties led to drafting the Bonn domestic law, or by the incorporation into Guidelines on Access to Genetic Resources private binding agreements. The latter and Fair and Equitable Sharing of the Bene- occurs most frequently with standards gov- fits Arising out of their Utilization (COP erning contracts or other business activities. Dec. VI/24, April 2002), a detailed attempt UNIDROIT (the Institute for the Har- to resolve some of the outstanding issues monization of International Private Law) is through the use of soft law. an independent intergovernmental organiza- Other non-binding instruments adopted tion that prepares draft conventions, model by state parties similarly “authoritatively laws, and principles based on comparative legal interpret” the obligations contained in pre- analysis. Its texts help fill the need for har- existing treaty provisions. The World Bank monization in transnational business inter- Operational Standards seem intended to give actions, providing reliable contractual terms guidance to employees in furthering the and obligations and minimizing legal un- mandate of the World Bank as set forth in certainties and linguistic misunderstandings. its constituting treaty. The examples of the National laws that vary considerably can Inter-American and Universal Declarations raise transaction costs to the point where of Human Rights, as they relate to the OAS the inconsistencies can actually become con- and UN Charters, and the more recent sidered as a non-tariff barrier to trade (Meyer ILO Declaration on Fundamental Principles 2006: 122). The UNIDROIT contract prin- and Rights at Work also can be cited as ciples provide a catalogue of rules found in examples. In the case of the UDHR, the national and international contract law. This final declaration of the UN’s International particular soft law may be used in a number Conference on Human Rights (1968) proof ways: claimed that “[t]he Universal Declaration of Human Rights . . . constitutes an obligation 1 expressly incorporated in binding for members of the international commun- contract ity.”23 This proclamation can be seen as 2 as a supplement to domestic contract law simply another resolution unsuccessfully 3 as model code for the development of trying to make law out of a prior resolution further national and international law (non-law plus non-law can never equal law), 4 as the basis for further harmonization or as support for the view that the Univer- 5 part of formation of lex mercatoria sal Declaration constitutes an authoritative (customary international commercial interpretation of the human rights obligations law) (Meyer 2006: 134–5). in the UN Charter, or as a statement of opinio juris, which, together with state prac- The last category just listed is perhaps the most tice, demonstrates that the UDHR or at least interesting, because the extent to which some parts of it, have become customary inter- members of the international community are national law. The consequences flowing willing to accept informal commitments and from each of the three positions are radically non-binding expressions of expected beha- different. If the UDHR is not law, it creates vior in their relations with others may reflect no binding obligations for any state; if it is a maturing of the legal system and interna- 74 9780415418768_4_004.qxd 26/11/2008 02:35PM Page 75

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tional society. In ongoing cooperative negotiations may take place to develop relationships not all commitments need to more specific norms, usually in treaties. be expressed as legally binding obligations. (Bodansky 2005: 118–19) Clearly, there are instances of freestanding normative instruments that are neither related to nor intended to develop into binding Why are states adopting soft law agreements. The proliferating Memoranda texts? of Understanding generally can be included here, along with non-binding export control The increasing use of non-binding normative guidelines developed by international instruments in several fields of international weapons suppliers and the guidelines con- law is evident (Shelton 2000). There are sev- cerning money laundering adopted by the eral reasons why states may choose to use soft Financial Action Task Force (FATF). Such law over a treaty or doing nothing. First, the agreements often reflect an incremental emergence of global resource crises such as approach to addressing problems, allowing anthropogenic climate change and crashing consensus to be built ultimately to achieve hard fisheries, require rapid response, something law. In other instances, however, a freestand- difficult to achieve by treaty, given the long ing non-binding instrument can be indicative process required to negotiate and achieve wide of ongoing disagreement about the substan- acceptance of binding instruments. Non- tive norms. The 1981 General Assembly binding instruments are faster to adopt, eas- Declaration on the Elimination of All Forms ier to change, and more useful for technical of Intolerance and of Discrimination based on matters that may need rapid or repeated revi- Religion or Belief, for example, took 20 years sion. This is particularly important when to negotiate and has never been followed by the subject matter may not be ripe for treaty a treaty, largely due to objections from some action because of scientific uncertainty or lack states to a few provisions in the Declaration. of political consensus (Raustiala 2005: 582). Once adopted, then, the soft law can be In such instances, the choice may not be cited as a reflection of pre-existing custom- between a treaty and a soft law text, but ary law, in which case the normative contents, between a soft law text and no action at all. but not the text itself, may be taken as legally Soft law may help mask disagreements over binding. The norms also may begin the pro- substance, overcome competing visions of cess of creating new custom, or be relied organizations’ purposes and resolve institutional on in subsequent treaty negotiations. They crises (Schäfer 2006: 194). may also have an impact on the resolution of Another reason for recourse to soft law is disputes, without constituting either treaty or growing concern about the “free rider,” the custom, especially in new subject areas of inter- holdout state that benefits from legal regu- national concern: lation accepted by others while enhancing its own state interests, especially economic, Most international environmental issues through continued utilization of a restricted are resolved through mechanisms such as resource, such as depleted fish stocks, or by negotiations, rather than through third- ongoing production and sale of banned sub- party dispute settlement or unilateral stances, such as those that deplete stratospheric changes of behavior. In this second-party ozone. The traditional consent-based inter- control process, international environmental norms can play a significant role by national legal regime lacks a legislature to over- 24 setting the terms of the debate, providing ride the will of dissenting states, but efforts evaluative standards, serving as a basis to crit- to affect their behavior can be made through icize other states’ actions, and establishing the use of “soft law.” International law per- a framework of principles within which mits states to use political pressure to induce 75 9780415418768_4_004.qxd 26/11/2008 02:35PM Page 76

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others to change their practices, although, Industries, for example, was negotiated in general, states cannot demand that others between the US and UK governments, conform to legal norms the latter have not major human rights NGOs such as Amnesty accepted. Non-binding commitments may be and Human Rights Watch, and oil and gas entered into precisely to reflect the will of the companies, including BP, Chevron/Texaco, international community to resolve a press- and Royal Dutch/Shell (Williams 2004: ing global problem over the objections of one 477–8). or few states identified as among those Moving furthest away from traditional responsible for the problem, while avoiding international law, some soft law is negotiated the doctrinal barrier of their lack of consent and adopted exclusively by non-state actors, to be bound by the norm. The actions of the establishing a type of private governance. United Nations General Assembly banning Private soft law has the same advantages as driftnet fishing, for example, were directed at state-generated norms of cost reduction members and non-members of the United and speed in reaching agreement, reduced Nations whose fishing fleets decimated sovereignty costs, opportunities for compro- dwindling fish resources through use of the mise, but also adds the possibility of muting driftnet “walls of death.” The international or delaying states’ opposition. The Global community made clear its resolve to outlaw Reporting Initiative, for example, is a dis- driftnet fishing and enforce the ban, even closure initiative of CERES (Coalition for though it was not contained in a legally Environmentally Responsive Economics). It binding instrument. The same approach uses shareholder activism to get companies may be taken with respect to norms that to produce environmental reports and imple- reflect widely and deeply held values, such as ment environmental management systems. human rights or humanitarian law (Olivier The reporting format was developed by com- 2002). panies around the world, NGOs, accounting Non-binding instruments are also useful firms, institutional investors and labor. By in addressing new topics of regulation that March 2004, 416 companies had published require innovative means of rule making reports based in part or totally on the with respect to non-states actors, which gen- Guidelines, although only 18 reported erally are not parties to treaties or involved themselves fully in accordance with the prin- in the creation of customary international law. ciples (Williams 2004: 461). Some critics The emergence of codes of conduct and other charge that such voluntary, non-binding ini- “soft law” reflects this development. The 2003 tiatives do not change behavior, but merely Norms on the Responsibilities of Trans- put off necessary government regulation. national Corporations and Other Business Effective measures and compliance seem to Enterprises with Regard to Human Rights, come from integrated systems in which gov- adopted by the UN Sub-Commission on ernments, international organizations and the Promotion and Protection of Human non-state actors are involved. An example is Rights, exemplifies such texts; the Sub- the Financial Stability Forum, created in Commission asserted that the norms are not 1999, which is composed of central bank entirely voluntary, but instead provide corpora- regulators, securities regulators and insurance tions with an authoritative code of conduct. supervisors, as well as representatives of In other instances, soft law texts allow international financial institutions (the non-state actors to sign the instrument and World Bank and the IMF) and OECD, an participate in compliance mechanisms, both intergovernmental organization. The infor- of which are far more difficult to do with mation produced by the network includes treaties. The Voluntary Principles for Secur- performance standards, codes of conduct and ity and Human Rights in the Extractive other models, through which best practices 76 9780415418768_4_004.qxd 26/11/2008 02:35PM Page 77

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may be identified, which then become the Others note that non-binding rules of basis for domestic legislation. conduct have in fact had operational effects in Soft law instruments adopted subsequent European law (Snyder 1994: 198). In the social to a treaty are useful in allowing treaty part- field, formally non-binding rules emerged ies to resolve authoritatively ambiguities in through the open method of coordination. the binding text or fill in gaps, without the Although EU soft law has no formal sanctions cumbersome and lengthy process of treaty and is not justiciable, it employs non- amendment. This is part of an increasingly binding objectives and guidelines to bring complex international system with variations about changes in social policy, relying on in forms of instruments, means, and standards shaming, diffusion of the norms through of measurement that interact intensely and discourse, deliberation, learning and net- frequently, with the common purpose of works to induce compliance (Trubek and regulating behavior within a rule of law Trubek 2005: 350, 356). Soft law is used framework. The development of complex because social policy and welfare standards regimes is particularly evident in international are particularly critical to governments and management of commons areas, such as traditionally the exclusive domain of national the high seas and Antarctica, and in ongoing legislatures. States are very reluctant to turn intergovernmental cooperative arrange- over competence in these matters, especi- ments. For the latter, the memorandum of ally where there is no pre-existing formula understanding has become a common form or agreed standards. The EU cannot insist on of undertaking, perhaps “motivated by the uniform measures but must ensure easy and need to circumvent the political constraints, rapid revisability of norms and objectives. The economic costs, and legal rigidities that often first 5 years of the program showed a con- are associated with formal and legally bind- vergence towards the common EU objectives ing treaties” ( Johnston 1997: xxiv). in the policy guidelines. The European Union has turned to soft Three further reasons may explain the law to introduce some flexibility into its increasing use of soft law. First, soft law is all regulatory system in the face of adhesion by that states can do in some settings. Inter- new member states with weaker economies national organizations in which much of the and political institutions. The EC has thus modern standard setting takes place generally moved to deregulate and “simplify,” ostens- do not have the power to adopt binding texts. ibly to remove “outdated” and “unnecessary” Second, non-binding texts serve to avoid regulation, in the process advocating “soft law” domestic political battles because they do not as an alternative to traditional regulatory need ratification as treaties do. Third, soft instruments such as directives (Commission law can give the appearance that states are 2002, 2003). The result has been contro- responding to a problem where public pres- versial, especially as a means to improve the sure has been exerted, while in fact the form deteriorating working environment in cen- and contents of the instrument adopted are tral and eastern Europe. Critics say the non- designed to create little in the way of obli- legal alternative fails to take into account the gation (Graubart 2001–2: 425). significant imbalance in power between employers and employees and “[a]s such the necessary supports for various forms of soft Compliance with soft law law initiative and self-regulations within an enterprise are absent” (Woofson 2006: 196). Assertions that states are bound by law If true, this could be an example of moving require identifying the process by which from hard law to soft law in order to weaken legal rules and principles are authoritatively pre-existing standards. created. If states expect compliance and, in 77 9780415418768_4_004.qxd 26/11/2008 02:35PM Page 78

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fact, comply with rules and principles con- far reaching than would be the product of tained in soft law instruments as well as they treaty negotiations, so the overall impact do with norms contained in treaties and cus- may still be more positive with a non- tom, then perhaps the concept of international binding than a binding instrument. law, or the list of sources of international law, requires expansion. Alternatively, it may have to be conceded that legal obligation is Conclusion not as significant a factor in state behavior as some would think. A further possibility is From the perspective of state practice, it that law remains important and states choose seems clear that resolutions, codes of conduct, a soft law form for specific reasons related conference declarations, and similar instru- to the requirements of the problem being ments are not law, soft or hard, even if they addressed, as noted earlier, and unrelated to are usually related to or lead to law in one the expectation of compliance. manner or another.25 State and other actors Using data from 107 countries, one study generally draft and agree to legally non- sought to explain why countries comply binding instruments advertently, knowingly. with soft law standards. The results showed They make a conscious decision to have a text reputational considerations were significant, that is legally binding or not. In other words, but also found a consistent positive effect for practitioners, governments, and inter- of democratic systems on implementation: governmental organizations, there is not a “Countries implementing the Basle Accord continuum of instruments from soft to hard, are wealthier, have higher savings, are more but a binary system in which an instrument likely to have a current account surplus, are is entered into as law or as not-law. The more democratic, less corrupt, and have less not-law can be politically binding, morally divided government” (Ho 2002: 672), with binding, and expectations can be extremely democracy consistently outperforming all strong of compliance with the norms con- other explanatory variables (Ho 2002: 676). tained in the instrument, but the difference Domestic institution building is thus of between a legally binding instrument and one paramount importance to ensure compliance that is not appears well understood and acted with political as well as legal agreements. on by government negotiators. Although a Transnational NGO coalitions can assist to vast amount of resolutions and other non- mobilize and empower affected groups, with binding texts includes normative declarations, the possibility of enmeshing governments in so-called soft law is not law or a formal source a web of norms and pressures from above and of norms. Such instruments may express below to implement instruments such as the trends or a stage in the formulation of treaty Helsinki Final Act. or custom, but law does not have a sliding In some instances, compliance with non- scale of bindingness; neither does desired law binding norms and instruments is extremely become law by stating its desirability, even high and probably would not have been bet- repeatedly. ter if the norms were contained in a binding The considerable recourse to and compli- text. In fact, in many cases the choice would ance with non-binding norms may represent not have been between a binding and a non- an advance in international relations. The binding text, but between a non-binding text ongoing relationships among states and other and no text at all. In instances where the choice actors, deepening and changing with global- is presented, there is some evidence that ization, create a climate that may diminish the there may be less compliance with non- felt need to include all expectations between binding norms, but that the content of the states in formal legal instruments. Not all instrument is likely to be more ambitious and arrangements in business, neighborhoods, 78 9780415418768_4_004.qxd 26/11/2008 02:35PM Page 79

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or in families are formalized, but are often decisions and teachings of highly qualified pub- governed by informal social norms and vol- licists providing evidence of the existence of a untary, non-contractual arrangements. Non- norm. See ICJ Statute, Article 38. 2 See, for example, International Covenant on binding norms or informal social norms can Economic, Social and Cultural Rights (1966), be effective and offer a flexible and efficient Article 2(1): Each state party “undertakes to take way to order responses to common problems. steps, individually and through international They are not law and they do not need to be assistance and co-operation, especially economic in order to influence conduct in the desired and technical, to the maximum of its available resources, with a view to achieving progres- manner. sively the full realization of the rights recog- The growing complexity of the interna- nized . . . by all appropriate means, including tional legal system is reflected in the increas- particularly the adoption of legislative measures.” ing variety of forms of commitment adopted 3 Article 25 provides that: “The members of to regulate state and non-state behavior in the United Nations agree to accept and carry out the decisions of the Security Council in regard to an ever growing number of trans- accordance with the present Charter.” national problems. The various international 4 UN Charter, Art. 13. actors create and implement a range of inter- 5 Memorandum of the Office of Legal Affairs, national commitments, some of which are in UN Secretariat, 34 UN ESCOR, Supp. legal form, others of which are contained (No. 8), 15, UN Doc. E/CN.4/1/610 (1962). 6 Rio Declaration on Environment and Devel- in non-binding instruments. The lack of a opment, adopted by the UN Conference on binding form may reduce the options for Environment and Development (UNCED) at enforcement in the short term (i.e. no liti- Rio de Janeiro, 13 June 1992, UN Doc. gation), but this does not deny that there can A/CONF.151/26 (vol. I) (1992). exist sincere and deeply held expectations of 7 United Nations (1998), UN Guiding Prin- ciples on Internal Displacement, UN Doc. compliance with the norms contained in the E/CN.4/1998/53/Add.2 (1998). non-binding form. 8 Texaco/Calasiatic vs. Libya, Arbitral Award There is no “recipe” for success that will (1978), 17 ILM 28–29. ensure the effective resolution of international 9 See Principle 35 of Statement of Principles problems and conflicts. While there may be Applicable to the Formation of General Customary International Law, ILA London particular factors that appear to influence Conference 2992, Final Report of the state and non-state behavior, determinants of Committee on Formation of Customary implementation, compliance, and effective- (general) International Law. In this text, the ness vary in a single subject area and for a ILA claimed that resolutions accepted unani- single legal instrument. Ultimately, the issue mously or almost unanimously and “which evince a clear intention on the part of their sup- centers on how to prevent and resolve con- porters to lay down a rule of international flict and promote international justice. In the law are capable, very exceptionally, of creat- end, the international legal system appears ing general customary law by the mere fact of to be a complex, dynamic web of inter- their adoption.” relationships between hard and soft law, legal 10 The Principles and Guidelines were first approved by the Commission on Human norms given greater or lesser priority, Rights, Res. 2005/35 of 19 April 2005 national and international regulation, and (adopted 40–0 with 13 abstentions). various institutions that seek to promote the 11 UNGA Res. A/Res/60/147 of Dec. 16, rule of law. 2005. 12 UNGA Res. 1803 (XVII) of 14 Dec. 1962, Permanent Sovereignty over Natural Resources, UN GAOR. Supp. (No. 17) 15, Notes UN Doc. A/5217 (1963). 13 UNGA Res. 3201(S-VI), 6 (Special) of 1 May 1 General principles of law are a third, more rarely 1974, UN GAOR, Supp. (No. 1) 3, UN Doc. used, source of international law, with judicial A/9559 (1974).

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14 UNGA Res. 3281 (XXIX) of 12 December nection with the Treaty on the Non-Proliferation of 1974, Charter of Economic Rights and Duties Nuclear Weapons, IAEA Doc INFCIRC/153 of States, UN GAOR, 29th Sess., Supp. No. (May 1971). 31, at 50, UN Doc. A/9631 (1975). 23 UN International Conference on Human 15 E.g. the UN General Assembly ban on Drift- Rights (1968) UN Doc. A/CONF/32/41 at net Fishing in UNGA Res 46/215 (2001). 3 (13 May 1968). 16 GA Res. 1962 (XVII). 24 Thus Teubner argues that: “In principle . . . 17 Stockholm Declaration of the United Nations most rules of international law are only Conference on the Human Environment, authoritative for those subjects that have June 5–16, 1972, UN Doc. A/CONF.48/14 accepted them” (Teubner 1997: 584). (1972). 25 See, e.g. the Decision adopted by the General 18 Convention on Biological Diversity, 5 June 1992, Council of the WTO on 1 August 2004 con- 31 ILM 818 (1992). taining frameworks and other agreements 19 Convention on the Prior Informed Consent Proced- designed to focus the Doha round of negoti- ure for Certain Hazardous Chemicals and Pesticides ations, para 2: “The General Council agrees in International Trade, 30 ILM 1 (1999). that this Decision and its Annexes shall not be 20 Convention on the Conservation of Migratory used in any dispute settlement proceeding Species of Wild Animals, 19 ILM 15 (1980). under the DSU and shall not be used for inter- 21 Antarctic Treaty, 402 UNTS 71. preting the existing WTO Agreements,” 22 IAEA, The Structure and Content of Agreements http://www.wto.org/english/tratop_e/dda_e/ Between the Agency and State Required in Con- draft_text_gc_dg_31july04_e.htm.

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5 The practice of international law

Anthony Carty

This chapter designates the analytical frame- Introduction: the state of the work within which one can assess whether states, academic discussion through their practice, recognize a rule, principle or practice as binding on them as law. Academic inter- It is possible to give the concept “practice” national lawyers do not usually go further in defining several meanings. Perhaps the most obvious the practice of states than to look at the jurispru- is to trace the practical activities of lawyers dence of the International Court of Justice on the as international lawyers. In The International issue of definition of customary international law, lawyer as Practitioner Wickremasinghe identi- and, additionally, compiling official state commu- fies 10 different roles for the international niqués in semi-official national yearbooks. We offer, lawyer. As a U.K. Foreign Office legal adviser instead, an explanation of how the archival tools he has numerous functions: advising on the of diplomatic history can reveal how far it is pos- place of international law in making foreign sible to construct an historical narrative that deter- policy; negotiating treaties; codification of the mines precisely whether law has formed part of law; advising at the U.K. Permanent Mission the motivational structure of a state, when the at the United Nations or the European question is whether it is observing or creating inter- Union. The international lawyer also has a role national law. At the same time, it is necessary, in as an advocate at a domestic or international expositions of state practice, to be aware, at the sys- court level. He serves as international judge tematic, theoretical level, of the impact which the or as arbitrator and he also advises both nature of international society will have on the will- non-governmental and international organ- ingness of states to give a place to international law izations (Wickremasinghe 2000). alongside their anxieties about national interests Another meaning, the one preferred here, and security. It is also valuable to consider not only is to designate an analytical framework the extent to which diplomatic history can make within which one can assess whether states, transparent the role of international law in state through their practice, recognize a rule, prin- practice, but also the extent to which this practice ciple or practice, as binding on them as law. does or does not confirm or deny the skepticism of In other words, we mean to address quite sim- realist theory about the place of international law ply the practice of international law by states. in international society. The first problem to consider is that orthodox international lawyers do not 81 9780415418768_4_005.qxd 26/11/2008 02:36PM Page 82

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usually go further in defining the practice essential to the psychological element of of states than to look at the jurisprudence of custom. D’Amato (1971: 82–4) has been the international court of justice and then, equally direct in questioning any possible legal sometimes, in addition, to compile official method of observing customary law evolv- communiqués with respect to a country’s state ing out of the consciousness of a modern practice in semi-official national yearbooks of bureaucratic State. international law. There are huge problems It appears impossible to speak of states hav- with respect to both these undertakings. The ing an identity that allows one to suppose that, first approach generally does not even directly as centers of subjectivity, they have acquired address the means to gather state practice but a sense of obligation with respect to a par- instead confines itself to considering the ticular matter. If the state is viewed as a cor- judgments of the I.C.J. (and its predecessor porate entity, the legal order that supports it the Permanent Court of International Justice) should define the organs of the state com- on the meaning of state practice, in particu- petent for the purpose of creating general lar the concept of general customary law.1 custom, and, furthermore, specify when in fact So, no student of international law will be the organs are acting to this end. Yet the inter- invited actually to explore the practice of states, national legal order does not do this. Jurists if he/she follows the guidance of the standard are left fumbling with the idea that the state textbooks. Instead they will be invited to is itself, as a totality, in some undefined way, comment on the more or less pragmatic capable of having a “legal sense” that it is deliberations of the International Court. bound by a general custom that may even be According to the view of the I.C.J., one supposed to be already existing. The reaction is to find that states have, in some sense, a legal of some jurists has been to try to dispense with conscience or sense of conviction. In the North the psychological element of general custom Sea Continental Shelf cases, which are most usu- altogether, yet without abandoning the con- ally cited, the Court said that the “practice of cept of general custom itself (D’Amato 1971: states” relevant to the assertion that a rule of 52; Sorensen 1946: 52). customary international law exists must: Pierre-Marie Dupuy (2003a: 160, my translation) provides a most recent exhaustive [B]e such, or be carried out in such a way, and authoritative account of the formal as to be evidence of a belief that this prac- problems for the mainstream. Dupuy draws tice is rendered obligatory by the existence attention to the fact that the profession must of a rule of law requiring it (opinio juris sive face a deficiency: “[T]hat, precisely, of the exis- necessitatis)...The States concerned must tence of procedures, duly formalized by the law therefore feel that they are conforming to itself, for the creation of customary norms.” what amounts to a legal obligation. Dupuy (2003a: 160–61) remarks how there (I.C.J. Reports 1969: 77) are very detailed rules for the conclusion of treaties, “but, there are not, to the contrary, The basic problems with this formulation have to borrow the terminology of Hart, secondary been put squarely by both Sorensen and rules governing the conditions of formation D’Amato. Sorensen (1946: esp.109) points out of custom . . . One contents oneself to affirm how the very nature of relations among unilaterally that the rules of custom exist or states makes ascertainment of an evolving cus- one awaits a judge to say so himself, in place tomary law virtually impossible. Diplomatic of the States.” Until there is some form of negotiations remain so closed and secret that “revelatory proof of its existence, generally not even the representatives of one state will judicial, a rule of custom remains a virtual rule. know what are the underlying motives of their The paradox is that, trapped in its theor- opposite numbers. Yet such motivation is etical premises, the most classical positivist 82 9780415418768_4_005.qxd 26/11/2008 02:36PM Page 83

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doctrine, says Dupuy, nonetheless persists After these important deliberations, in seeing in custom, despite this absence of Mendelson (1995: 195–6) writes that it is forms, a formal source of law with respect to better to speak of the subjective rather than the conditions of its creation, and not merely the psychological element of custom: with respect to its content.2 There is a clear residual confidence among [F]or it is more a question of the positions international lawyers that the international taken by the organs of States about inter- judiciary can “reveal,” to use Dupuy’s lan- national law, in their internal processes. [fn. guage, the presence of custom, and turn it from Including the communications of govern- virtual to real law. Yet, it is almost a comments to national legislatures and courts, and the express or implicit prise de position about monplace of legal doctrine that the I.C.J. has rules of international law by national courts reached decisions in such cases as the Fisheries and legislatures in the exercise of their Jurisdiction (1974) or the Advisory Opinion functions] and in their interaction with on Namibia (1971) in the face of so much other States, than of their beliefs. conflicting state interest and interplay of power, as to leave one at a loss as to how gen- The United Kingdom Materials on Interna- eral custom is supposed to arise out of state tional Law (until recently, edited by the late practice (see, e.g. Churchill 1975; Hevener Geoffrey Marston) have been available in 1978: 793–4). the British Yearbook annually since 1978. Some doctrinal consideration of what Marston has followed what is called the would be involved in actual, direct analysis model plan for the classification of documents of state practice does directly address the concerning state practice in the field of difficulties of assembling practice and then pre- public international law, adopted by the senting it systematically. An authoritative Committee of Ministers of the Council of recent representation of the debates about the Europe in its Resolution (68)17 of June 28, two elements that make up customary law, 1968. This was amended by Recommenda- material practice and the subjective element, tion (97)11 of June 12, 1997, following is Mendelson’s (1995) article, in which he raises General Assembly Resolution 2099(XX) on the important question of whether, in order technical assistance to promote the teaching, to assess the subjective element of custom, it study, dissemination, etc. of international is necessary to know the inner workings of a law. The changes are not significant, and the state bureaucracy. States do not have minds essence of Marston’s approach is that he sets of their own: out, as Mendelson (1995) has put it “positions taken by organs of States about international [A]nd in any case, since much of the decision law, in their internal processes and in their making within government bureaucracies interaction with other States.”3 takes place in secret, we cannot know what States (or those who direct or speak for them) really think, but only what they say they Towards a phenomenology of think. There may be something of an the actual problem exaggeration here. In some instances we can discover their views because the opinions In philosophical discourse the word phe- of their legal advisers or governments are nomenology is used to describe the attempt to published. [fn. Though admittedly this is done only on a partial and selective basis and reach directly to the object one wishes to often only long after the event; and though understand, through some scheme of full it must also be conceded that the opinion perception and digestion of the object. In this of a government legal adviser does not invari- case, some general remarks have to be made ably become that of the government.] about the significance of penetrating the 83 9780415418768_4_005.qxd 26/11/2008 02:36PM Page 84

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bowels of the state to find out whether and permit the U.S. action. The U.K. did not try how it is observing or contributing to the to claim that the U.S. had acted independently creation of international law. In strict legal of it, but supported U.S. action, again rely- terms, the issue can arise in distinct ways. It ing on intelligence information – which may be a matter of determining whether a could not be disclosed for security reasons – country is observing or violating a rule of law. that there were very specific Libyan targets Alternatively this may be a matter of assess- engaged in terrorist activity. The information ing what contribution the country is making could not be disclosed for fear of jeopardiz- to the development or clarification of the law, ing sources. Prime Minister Thatcher, in the where it is taken to be uncertain. In either House of Commons on 16 April 1986, case, it is not enough simply to know what affirmed that her legal advice was that the verbal positions state organs take up. It is nec- bombing targets chosen were permitted by essary to know what the country has actually Article 51 of the U.N. Charter, as a matter done. The discrepancy will arise where the of an inherent right of self-defence against official positions are either not true or not the armed attack (see Carty 1990: 131–33).4 whole truth. But it need not even be so black It was argued, however, in the House of and white morally. It may simply be that with- Commons debate, that she should be obliged out the full picture, the actions of a state, such to demonstrate, with relevant evidence as the U.K., may be unintelligible. before the Security Council, that Article 51 In an article published in 1986, a Foreign had been observed. This would mean pro- and Commonwealth Office (F.C.O.) legal ducing concrete evidence that, at the least, adviser drew attention to the fact that “in- without an air strike there would be planned formal agreements” played a large part in raids from specific camps, putting British British foreign relations (Aust 1986: 787). The citizens at risk. The Foreign Secretary, Sir basic principle is that a state is free to deny Geoffrey Howe, himself a Q.C., argued in itself the advantages of concluding a legally reply that the right of self-defence includes binding treaty in order to benefit from the the right to destroy or weaken one’s advantages of concluding informal instru- assailants, to reduce his resources and to ments. Security and defence issues are not the weaken his will so as to discourage and pre- only issues covered, but it is clear that the vent further violence. advantage here is the flexibility which comes The argument by the Foreign Secretary was, from secrecy. This background will usually be then, presented in a context where the infor- relevant to cases involving the use of force, mation that was supposed to ground the as there will be agreements between the threat or risk and the justification for military U.K. and its allies that are not public know- action could not be disclosed because it ledge, or there may be relevant agreements would jeopardize sources of intelligence even if the U.K. is not itself formally a party information. There was effectively a claim to to them. determine unilaterally the scope of interna- To present the issue in a wider context, one tional obligations with respect to restraint on might take a well-known and still uncertain the use of force, not only with respect to the case, the U.S. bombing of Libya in 1986 extent of the norm but also the factual con- from bases within the U.K. The terms under text of its application. which the U.S. enjoys the use of military bases Yet, from a practical point of view it can within the U.K. are known only to be the be very difficult to penetrate significantly “into subject of informal agreements or even the bowels of the state.” It is very difficult to understandings. With the U.S. bombing of discuss contemporaneous events for a num- Libya from British territory, one question was ber of reasons. Those involved are usually still whether the U.K. had the full legal power to alive and may continue to be engaged in the 84 9780415418768_4_005.qxd 26/11/2008 02:36PM Page 85

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very same events that are ongoing. Per- responsibility. Positions taken by govern- spectives and opinions about the best course ments would then be of more importance than of action will remain openly contested. understanding actions in contexts. How- Furthermore, there will not usually be ever, investigation of customary practice is agreed objective and detached sources from a matter of deciphering the normative signi- which one can draw to determine the nature ficance of the behavior of collective entities, of the events. There will be much fresh, first- and of evaluating, comparatively, clashing col- hand testimony, but it will be conflicting. lective actions. As we have seen, doctrine has Where official events are concerned, and state virtually talked its way into the position that practice falls under this rubric, there will not somehow the very idea that states have be direct access to primary source material, intentions, minds etc. is regarded as absurd. and, indeed it may be wondered whether the Instead, the notion of legal obligation of states very idea of primary source material itself is is to be inferred from the results of their beha- becoming archaic in the postmodern age of vior, externally observed as a sort of material political spin. Contemporary events will be fact. As Akehurst (1974–5: 195) put it some important to those still engaged and passions time ago: “We cannot know what States will run high in attempting to discuss them. believe. First of all States being abstractions At the same time, the objective, detached, per- or institutions do not have minds of their own; haps officially agreed records for the descrip- and in any case since much of the decision- tion of the events will not be available and making within governments takes place in there will be no final authority to adjudicate secret, we cannot know what States (or those contesting versions of the events. who speak for them) really think, but only All of this impinges directly on the prac- what they say they think.” tice of the international lawyer in at least two It is necessary to realize that there are degrees respects. The international lawyer needs, as to which the internal workings of the state much as the diplomatic historian, to under- can be made transparent and part of the rigor stand state conduct and this means having which may accompany the work of the legal reliable access to state intentions. These analyst is to realize the extent to which remain, in principle, state secrets except in so one is approximating total transparency. For far as the state itself chooses to disclose them, instance purely historical work, in the sense or when recalcitrant officials leak them, or that archives are fully open, allows one to journalists otherwise come improperly or construct an historical narrative that deter- irregularly on state intentions. Such well- mines precisely whether law has formed part known problems pose for the theory of state of the motivational structure of the action practice the temptation to avoid the psy- of a state.5 This will constitute an absolute chological or intentional element of state standard against which to judge whatever practice when collecting and analysing it. We other explorations of state practice one may suggest that it is a remedy a lot worse than undertake. In this respect, the work of the legal the disease. analyst most closely approximates that of the What is needed is a framework of analysis diplomatic historian. of state activity that allows a legal analyst to At the same time a theory of the practice engage in effective analysis of the conduct of of international law has also to consider the states as actors in international society. This inherent possibilities of the impact of legal entails actually penetrating the corporate veil advising in the state structures which make of the state in order to understand both facts up international society. This brings the legal and intentions. For some purposes this might analyst much closer to the theorist of inter- not be strictly necessary, e.g. if the matter national relations, as well as to the science under observation is purely one of legal/state of the history of political ideas. There is a 85 9780415418768_4_005.qxd 26/11/2008 02:36PM Page 86

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widely held realist view of the nature of inter- becomes the position of the government national society, which dictates that a state when the government actually follows it. At will place its subjectively considered view of the same time where the government has heard its national security needs above any inter- legal suggestions but not followed them, that national legal or moral standard. There is fact can indicate a great deal about the polit- unending controversy about the extent to ical character of the state decision, even which this in fact must happen. However, the when it cannot be said that the state has acted legal analyst needs to be conscious of both the illegally. The manner in which the legal pressures the “in-house lawyer” will suffer advice is introduced can affect its character. within national state bureaucracies and For instance, it is not uncommon for the indeed the extent to which the whole ethos lawyers to have no case stated to them, but and intellectual tradition of international simply to be sent all the relevant dispatches. law, as part of the European history of polit- This will have the effect that the lawyers are ical ideas, is itself permeated by the language expected to enter into all the practical con- of raison d’état.6 Nonetheless, empirical siderations on which the government has to investigation of the practice of international decide. However, a more usual practice is for law within state structures should throw papers submitted to the legal advisers to be enormous light on the “real” force of “real- minuted so as to show as clearly as possible ist” perspectives on the importance of inter- the points on which the legal advisers’ view national law. Obviously, there are many is required. Any use of that advice must other international relations perspectives, but be clearly approved by the legal adviser. space does not permit consideration of them According to a former legal adviser, this and for this reason, the “realist” theory is cho- gives the lawyer not merely a function of sen as the one most likely to discount any place finding and explaining the law but also “an for international law in the decision-making important control over the way in which the process of a state. The discussion will not focus law is applied in particular cases” (Berman on elaborating on variations of “realist” the- 1994: 85). ory but merely try to expose, through a study The usually understood form of inter- of international law practice, the actual place national legal analysis can be actually quite of international law in international society alien to the way in which international law in particular cases. Through study of numer- is practiced, not simply in the sense of how ous such instances of practice, it may be even- international lawyers understand it, but also tually possible to generate new international in the sense of how it becomes the interna- relations theory. tional legal practice of states. Lawyers have distinguished what they call a purely legal method of exposition of the legal advice given Exploration of state practice with to governments and an historical–diplomatic the tools of diplomatic history approach. Clive Parry, Lord Arnold McNair and H. A. Smith have expressed themselves In the words of the 1920s’ U.K. Foreign Office on this matter. Part of the difficulty is seen Legal Adviser, Sir Cecil Hurst: “What makes to be feasibility to present all relevant international law is the practice of govern- contextual documentation, but also lawyers ments, and to know in any particular case not doubt whether they have the competence, in merely what the Government did but why it McNair’s words, “to pursue each incident to did it, i.e. the particular circumstances in the its conclusion and find out what happened. case on which its view is based, is what makes That would be diplomatic history, a field in the precedent valuable as a guide for the which I have no experience and into which future.”7 In other words the legal advice only I would not dare to enter” (McNair 1956: xx). 86 9780415418768_4_005.qxd 26/11/2008 02:36PM Page 87

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McNair and Parry both consider that legal state officials acted in terms that were under- advice is in itself very valuable, as being impar- stood subjectively to be formulated legally. tial advice given with respect to a concrete That is to say, the officials considered they situation. One can wonder how they feel so were acting as they were legally entitled or assured as to the impartiality of advice if they bound to do. This is a matter of evidence and remain unaware of the context in which it is the evidence is in the archives. House of given. However, much more importantly, the Commons statements or other official com- lawyers here appear to be making a fetish out muniqués can bind the state, in the sense of the legal advice by forgetting that the only of an estoppel, but they do not amount to point at which international law can come reliable evidence of what the state’s actions into existence, or have any real existence, is mean. For this one needs access to intentions, through the actual practice of states, and yet as much in the practice of legal interpretation they are saying that they do not have the as in the practice of states. competence as diplomatic historians to assess That many specialists in the field of inter- exactly what is the precise historical signi- national law should say there is no coherent ficance of state practice. Hence, there is no legal method to directly access customary inter- one who can make the distinction, crucial national law and so one has to await pro- for the evolution of new customary inter- nouncements of the World Court as to that national law, between state practice which practice is an internally contradictory view is legally or not legally significant, because it of the nature of international law. This is is or is not attributable to a legal conviction because it is already recognized by the foun- (opinion juris) on the part of states. How such dational article 38 of the Statute of the I.C.J., a determination would work out in practice that judicial opinions are merely evidence can be illustrated from a contribution to of the law and not its direct source. If no this debate by Smith, with respect to the “normal” international lawyer can explain how U.K. recognition of the Spanish American he can unearth a state practice which consti- Republics. We use this example because we tutes customary law, the mere authority of the intend to illustrate the historical diplomatic judiciary cannot fill the gap. At the same time method later, with respect to the U.K. gov- international relations scholars recognize that ernment’s recognition of the new Com- the importance of anthropological theory munist Chinese government in 1949. Smith for the foundations of international law rests (1932) says: in the fact that the meaning of legal concepts is limited by the relativity of different state Legal opinions and pronouncements have or other collective community grasp of any but little value except in relation to the facts sense of obligation outwards, whether legal which provoke them . . . Without a fairly or otherwise.8 Some mechanism to explore a generous selection from the political dialectic of disparate legal meanings has to documents it would be impossible, for be elaborated. The perspective on the ana- example, to understand the reasons which finally impelled Great Britain, after many lysis of state practice, which is offered here, years of hesitation, to decide upon the has the ambition to explore in very much more policy of recognizing the Spanish Amer- detail the suspicion that concrete international ican Republics. legal practice, despite its ideological tones and pretence of universality, is actually very It is argued here that it is worthwhile to ask bound to national institutions that effectively whether a state’s actions in a particular determine the meaning of legal obligations. instance are motivated by legal considerations However, it is too simple to say that states, among others. Whether this is the case is sim- as sovereigns, give words meanings that suit ply a matter of assessing whether significant state interests. This begs the question: What 87 9780415418768_4_005.qxd 26/11/2008 02:36PM Page 88

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is the state? Instead, it should be recognized rendering of abstract advice, but will rather that the state as an institutional framework for be designed wherever possible to afford prac- numerous subordinate institutions is a textual tical guidance as to what course of action or interpretative community within which to follow in the particular circumstances, international law officials work with others having regard to governing legal principles to achieve certain aims. and to developing legal trends. It may be that in a particular case the lawyers are the determining factor in a decision- It is proposed to illustrate this theory with making process and in this case to understand a concrete example from British diplo- the outcome as a human action, it is only nec- matic and legal practice, where it could be essary to trace the intentions of the lawyers said that the lawyers had clearly a very deter- and how it is that these intentions came to mining role in the outcome of a very be adopted. However, more usually the significant area of policy making where the work of the international lawyer will be politicians and diplomats certainly preferred entwined in a complex of attitudes and to regard their options as completely open, expectations also held by those who are not until they were otherwise directed by the inter- lawyers. The question is not whether the national lawyers. international lawyer nobly upholds legal The case concerns the de jure recognition principle as against a grimy national interest, of the Chinese Communist government as there will be a dialectic among several following its seizure of Beijing in October governments attempting to apply general 1949. There are two broad strands of docu- principles or rules, in accordance with their ments. The first is the Documents on British own subjective interpretations. Even more Policy Overseas: Britain and China 1945–1950 significantly, within national state institu- (henceforth, Documents) which are drawn tions as well as within smaller groupings or entirely from government archival sources, networks of states, it will be seen that the which ends with the recognition of the law really exists within webs of tacit under- Chinese government.9 They provide some standings and arguments, whose meaning picture of the wider chronology of the cannot be unraveled without regard to the diplomacy leading to recognition, but also interaction of the intentions and expectations mention the place of legal advice, quite of diplomats, politicians and lawyers. The unusual in such types of publications. The international law practice of a country and its second strand of documents consists of other standards, ethical, political or whatever, unpublished archive materials, mainly from together make up the ethos which permeates the the Foreign Office. Resort is had to this context within which all the officials (legal and for the purpose of obtaining the fullest political) work. Another U.K. Foreign Office picture of how the legal advice is developed Legal Adviser has given expression to very and used. These archival material show that much these sentiments. Sir Ian Sinclair the legal advice was directly taken on board (1982: 134) has written: by the political officials and became, virtually verbatim, the position represented by the Foreign Secretary, Ernest Bevin. The In the international legal field, there is no archival material also indicates that the clear dichotomy between law and policy, Foreign Office legal adviser also considered particularly where, as is often the case, textbook solutions are not available. The role that the issue of recognition of governments which the FCO Legal Advisers perform and representation at the U.N. were related, in relation to their clients is accordingly so that the decision as to the former could rather more creative than first appearances be guided by how one expected to deal with might suggest; it will not be confined to the the latter. 88 9780415418768_4_005.qxd 26/11/2008 02:36PM Page 89

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Recognition by the U.K. of the sarily comes in should really be limited to Communist government of China forming an opinion on whether the legal qualifications are fulfilled or not . . . In the recent past the conduct of a good many states The issue of recognition of a Communist and of some reputable states . . . has hardly regime was first broached in February 1949 been in accord with what I have indicated when the Chinese were already in control of above as being the proper legal view ...I a large area of China and refusing to recog- would rather gather from these papers that nize foreign consuls operating within their the Secretary of State has decided, and is even territories on the grounds that diplomatic committed to, that there shall be no recog- relations had not been established.10 How- nition of the Communist Government in ever, it did not become a pressing and clear China as the de jure Government in China case for a call for legal advice until August until it says that it will accept Chinese inter- and September 1949. The first thing which national obligations (query in general or with specified particular I do not know). clearly emerges from the archival record, but Now the position of China and the not so easily from the Documents, is that the Security Council eloquently, I think, Foreign Secretary and senior political offi- testifies to the difficulties which are likely cials within the Foreign Office were of a mind to occur if recognition is granted or refused to make recognition of the new Chinese gov- on other than some legal principle. I think ernment dependent on various conditions, that . . . in an ideal world, the other members and that the contrary legal advice, particularly of the Security Council . . . impartially of Sir Eric Beckett, was, most probably, very assess the practical elements of the situation influential in leading the government not to and see who is legally most entitled legally set conditions to its de jure recognition of the to represent China. new Chinese government. The story reaches its crucial stage on In the course of the preparation of a draft cab- September 27, 1949 when officials (P. D. inet paper for October 24, 1949 legal advice Coates) brought to the attention of the legal was taken solely on the question whether there adviser, a public speech by the Secretary could be any legal objection to the recogni- of State in the U.N.G.A., reported in the tion of the Chinese government, and, citing Times, that China, having entered into cer- Hersch Lauterpacht’s views on recognition, tain international obligations, must honor the legal advice was that there could be no them. The Times correspondent added that objection “having regard to the propor- this phrase has aroused much speculation. tion of Chinese territory controlled by the Reference is made to a legal adviser mem- Communist Government, the firmness of orandum, saying that it is not customary to its control there, on the one hand and the make conditions of this nature preliminary to tenuous nature of Nationalist control, 12 recognition of a new government, but that where it exists, on the other hand.” This the legal minute cannot be traced.11 An opinion was reproduced verbatim in the extensive two-page minute from Sir Eric Cabinet Paper, the Memorandum of Mr Bevin Beckett follows on October 4, 1949. on Recognition of the Chinese Communist Gov- ernment, of October 24, 1949.13 However, this memorandum did not The predominant and I think the right deal with the question of assurances from legal view is that the recognition of a government . . . is one which can be appreci- the Communist Chinese that they should ated solely on whether the regime applying respect China’s international obligations. for recognition fulfils the qualifications for Documents point to further discussion of the recognition laid down by international issue in diplomatic exchanges and in cabinet. law. The political appreciation which neces- The Australian Minister for External Affairs, 89 9780415418768_4_005.qxd 26/11/2008 02:36PM Page 90

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Dr. Evatt, claimed that the U.K., the U.S., (3) The Chinese say they are willing to and Australia were in complete accord on this establish diplomatic relations with any need to respect international obligations, and Government willing to observe the also that recognition would not be forth- principles of equality, mutual interest and coming unless China gave speciﬁc assurances mutual respect for territorial sover- respecting the territorial integrity of neigh- eignty . . . We could echo this phrase and argue thereafter that it implied some boring countries. Bevin replied that no general assurance of decent behavior. such assurances had been required from the “satellite” governments in eastern Europe and added that “in the light of our bitter mem- Scarlett concluded by asking Beckett: “Do you ories of the fate of non-aggression pacts at think that forms of words along the lines of the hands of totalitarian states” it was “incon- (2) or (3) would be likely to strengthen our ceivable” that the U.K. would request guar- hand in law vis a vis the Chinese if need antees for the territorial integrity of China’s arose?”15 neighbors.14 Beckett replied on the same day that he con- When it came to the preparation of a fur- sidered it unnecessary and undesirable to try ther cabinet paper in December 1949, the legal to make a bargain under which recognition adviser was approached by Mr. Scarlett, who de jure is given for an assurance that previous said the time for according de jure recogni- international obligations will be observed. This tion is fast approaching. He notes to Beckett: would certainly apply to (2), but even to the vaguer (3). Even that invites an awkward You have minuted . . . that the granting of answer and you gain nothing by it. This is de jure recognition is in fact merely an for reasons given in an earlier minute on the acknowledgment of facts and in conse- same day. Beckett suggested instead that a quence that this should not be conditioned separate statement might be made to some in any way. On the other hand, I have no else to which the Chinese government is doubt that it would be politically of some not required to respond.16 Such an approach advantage to phrase our communication recognizes the fact, insists Beckett, that: to the Chinese in such a way that the expressed wishes of e.g. the United States Government and the Government of [N]o change in the international obligations Australia might be held to have been met. of a state are brought about by a change of Both these Governments have repeatedly regime, and therefore it is not necessary, as expressed the view that recognition should the United States appear to be doing, to insist only be accorded in return for some prior on an explicit acceptance of this principle undertaking of good behavior from the new by the new regime. Indeed, to insist on such regime in China. an explicit statement has its disadvantages because it opens the way to the argument that the new regime is only bound by the As I see it there are three possibilities. previous obligations of the country if it expressly says that it will be.17 (1) Our Note to the Chinese could simply state that H.M.G. were now ready to These legal conclusions are substantially re- accord de jure recognition . . . produced verbatim in the ﬁnal Memorandum (2) We might follow our Yugoslav note which began by stating H.M.G.’s by Mr Bevan on Recognition of the Chinese Com- readiness etc. . . . and went on to state munist Government, to Cabinet (December 12, 18 H.M.G.’s assumption that the new 1949). Given especially the fact that the legal Government would respect the inter- adviser did not claim his view of the law was national obligations of its predecessor. even frequently applied, one must suppose that 90 9780415418768_4_005.qxd 26/11/2008 02:36PM Page 91

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the Foreign Secretary simply considered the of State, Dean Acheson. Sir O. Franks legal advice sound in itself. The memoran- reported that “They [the U.S.] now thought dum observes, on the effects of recognition, there was likely to be early expansion (of the that “recognition does not itself make the Chinese) south and east beyond the borders Communist authorities the rulers of China. of China. This expansion would be especially They are that already. Recognition is no more dangerous, if it took place, where there were than an acceptance of a fact, which its with- considerable Chinese settlements.” The holding would not alter.”19 To refuse recog- Ambassador asked what evidence there was nition when no other effective authority for this and said “The only reply I got was exists in China is to imply a boycott, which that the Communists would, by aggrandize- would be negative for long term relations. ment in the south, direct the gaze of the Politically, recognition means willingness to Chinese people from Manchuria.”24 enter into diplomatic relations and does not On January 6, 1950, The U.K. accorded signify approval of ideology. “The political recognition of the Chinese government, as in advantages of recognition are calculated on the effective control of by far the greater part assumption that we cannot afford to ignore, of the territory of China, as the de jure gov- however much we may disapprove its polit- ernment and they were ready to establish ical orientation, a government which has diplomatic relations on the basis offered by the effective authority over a vast territory and Chinese themselves, i.e. equality, mutual population. Similarly, it is assumed that benefit and respect for territorial integrity without relations with this Government, we and sovereignty.25 shall be in no position to exert influence on In June 1950 the Foreign Secretary pro- its future development.”20 It was recognized duced an extensive circular on Recognition of that such a position clearly did not guarantee States and Governments which was to remain treaty rights of the U.K. The final cabinet authoritative for at least 20 years.26 The memorandum mentions that the Chinese Foreign Office was continuing to refer to it offer of relations of equality etc. was only part in the face of the blizzards of military coups of the picture. The Chinese press announced in Africa and other parts of the “Third that all Kuomintang treaties were liable to re- World” in the 1960s and 1970s. The docu- examination and revision. The judgment ment outlines two approaches, which it calls was that in any case a unilateral statement by “doctrines” regarding the matter. It is so the U.K. would make no difference, will not comprehensively and closely argued that its lead to the obligations being regarded as reproduction is advisable. Its content will only binding and delay in recognition will not help be outlined here to show the connection with as the treaties are valueless without diplomatic how it applied in the case of the recognition relations. Therefore recognition, followed of the Communist government of China, after by laborious and unpromising negotiations is October 1949. The document itself includes what lies ahead, particularly with respect to an annex of a letter of Hersch Lauterpacht the Sino-British Treaty of 1943.21 More pre- to the London Times on January 6, 1949, cisely, it is stated that while “the new regime “prompted by His Majesty’s Government’s is not at present so corrupt as its predecessor, recognition of the Chinese Communist its authority may well prove even more arbi- government.” The letter “refers only to the trary and vexatious in its regulations.”22 recognition of governments, but the prin- The cabinet adopted the recommendation ciples applying to the recognition of states are to recognize the new Chinese government virtually the same.” on December 15, 1949.23 Two days later the The first approach was that recognition was ambassador in Washington reported the a matter of mixed law and fact, but mixed only results of a meeting with the U.S. Secretary in the sense that: “The law determines the 91 9780415418768_4_005.qxd 26/11/2008 02:36PM Page 92

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conditions which entitle a state or a govern- recognize what is obviously its Govern- ment to de jure or de facto recognition . . . Policy ment. Similarly, no international organiza- determines whether these conditions are or tion can work if, following the purely are not fulfilled, and there is often a margin anarchic doctrine of recognition, States are for a political appreciation . . . But if the infinitely various as regards the regimes they conditions for recognition are fulfilled, there recognize, as they are likely to be, whereas the scope of difference is reduced to is a legal duty to grant it.” The crucial part narrow proportions if the first doctrine is of this argument, which was decisive to the strictly followed. Chinese case, comes at the end. “Recogni- tion does not necessarily imply any approval The document recognizes that it is the U.S. of or any friendly disposition towards the which virtually adopts this second doctrine regime recognized.” although not precisely in the language pre- The second approach was that “recogni- sented here, viz., that recognition is purely a tion is a pure matter of policy and involves matter of policy. The U.S. itself will present no question of law whatever . . . states recog- its strategy on recognition “as an instrument nizing or refusing to recognize are merely of policy in support of law and legal order.” using political weapons in a political game.” For instance, a regime should not be recog- Again, the punchline is at the end. “Under nized if it is unconstitutional, e.g. the U.S. this doctrine recognition implies a moral or approach to certain Latin American regimes. political approval of the regime recognized.” Neither should there be recognition if a It would not be fair to say that policy state or regime is constituted as a result of advantage alone led to the choice of the aggression, as with the Stimson doctrine, first approach without any constraining legal characterized by this document “as completely force. However, this policy was specifically unsuccessful.” Again, recognition may be evolved in the Chinese context where it refused to a government, unless it appears the was always recognized that Britain’s main pro- state or regime will recognize international tagonist, the United States, took the second obligations, particularly those of its prede- approach while Britain was preparing to take cessors. The document notes such a practice the first one. In this memo, the arguments are of bargaining for recognition is not infrequent, expressed more abstractly and even academ- but it is incoherent because new govern- ically rather than diplomatically. ments are anyway bound by such obligations, In the document, the argument is that “and to bargain about this as a condition to the first doctrine “is broadly based on the recognition tends to throw doubt on the legal general practice of states and, taken over a long principle.” period, though there are admittedly excep- The document is especially determined tions, the balance of authority is strongly in to root out evaluative elements in recogni- its favor.” In contrast, the second doctrine is tion, however high sounding. The second anarchic: doctrine remains just as anarchic as in its bald It makes almost nonsense of a great part of formulation: international law and if generally followed may render almost impossible the working It would be possible to justify almost any of any international organization. When the non-recognition on the ground that the greater part of international law is directed non-recognizing State was not satisfied to defining the rights of States, it is not on that the new regime was prepared to fulfill a very sound foundation if State A can in all its international obligations, for instance effect avoid the greater part of its obliga- recognition of all Communist regimes tions to State B by deciding as a pure mat- could be refused on the ground that they ter of policy not to recognize it, or not to did not recognize human rights. 92 9780415418768_4_005.qxd 26/11/2008 02:36PM Page 93

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In fact, these two doctrines are being formu- be the experience it had had in negotiating lated as a matter of direct British opposition its policy of recognition of the Chinese to U.S. policy and tactics with respect to People’s government with the United States. the cold war, with Communist China as the focal point. The document itself mentions Israel and China. Israel was recognized as soon International relations theory and as the establishment of the new state was no the practice of international law longer in doubt, but “as soon as it was clear that it was sufficiently firmly established, The present case study focuses on the active they [H.M.G.] recognized it.” More central U.K. Foreign Office discussions in July and to our present story: August 1957 about the best way to present the U.K.’s relations with Oman and Muscat The recognition of the Chinese People’s internationally, when an Arab bloc of states, Government was a straightforward case of led by Egypt, tried to place (what it called) the application of the first doctrine . . . U.K. armed aggression against Oman on the because the Chinese People’s Govern- agenda of the Security Council. The legal ment was firmly established, with control over practically all Chinese territory, they advice of Francis Vallat and Sir Gerald [H.M.G.] recognized it de jure, although the Fitzmaurice played a considerable part in character of that Government was not one these discussions, which reveal a vision of which commanded their approval and it was governmental structures for dealing with far from certain that it would recognize international relations which appear very obligations under international law, as His much a hangover from the period of the Majesty’s Government understand it. high renaissance. Secrecy is prized as the most reasonable option when it comes to pro- It is important to conclude this section of viding public explanations of state conduct. the story with a remarkable passage, which What the case study will show is not the fail- shows the very careful deliberation, which is ure to apply international law, but rather a going into the choice of the word “doctrine.” more constructivist, and at the same time, Bevin is arguing in his circular to U.K. rep- fragmented picture of an international soci- resentatives abroad, that H.M.G. is choosing ety where legal discourse plays a significant the first doctrine as the right doctrine, which part but does not grasp fully the complexities it thinks is in the interest of the development of the situations which it indeed may con- of a peaceful and stable world order. He tribute to concealing. International law is continues: both constrained by raison d’état and also In view of the attitude of the United States becomes interwoven in the secrecy of the Government, it is clear that any public diplomacy that that requires. discussion of this subject must be very The case study takes as a starting point the carefully handled. Nevertheless it is the types of charge levied against the U.K. in intention of His Majesty’s Government to works such as Mark Curtis’s The Ambiguities spread as widely as possible the knowledge of Power (1995) and the successor volume, The that the doctrine set out by Professor Great Deception, Anglo-American Power and Lauterpacht is in their opinion correct and World Order (1998). Curtis’s view is that to propagate that doctrine by all suitable Britain has a clear foreign policy aim, which means, in the hope that the contrary doctr- it follows in concert with the United States. ine may thus become generally discredited and be eventually abandoned. This aim is to preserve as much as it can the economic, political and military advantages, This very carefully constructed picture is the which it possessed at the time of the Empire. outcome of what the Foreign Office took to In his analysis, Britain continues to be largely 93 9780415418768_4_005.qxd 26/11/2008 02:36PM Page 94

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successful in the pursuit of this policy in the example of such lawful intervention at the Middle East, especially in the Gulf, and in request of states might be the British aid to southeast Asia. Military interventions, whe- Muscat and Oman. ther covert or open, and support for friendly Curtis comments on this incident as regimes, particularly military and other secu- follows. Oman requested British military aid rity training, will be attuned to the need to quell a revolt in the north of the territory to preserve these interests. Obviously, the in the summer of 1957. In fact, in Curtis’ view, language of international law is a potentially Oman was a de facto client state controlled useful propaganda weapon in the hands of by Britain as much as any former colony. Its opponents and so no useful purpose is served armed forces were commanded by British by an explicit and provocative disregard of it. officers under the overall control of a British Therefore the British rhetoric is one of general. The Ministries of Finance and continued commitment to the principles of Petroleum respectively and the director of the the U.N. Charter, viz., above all, non- intelligence service were British. Banking intervention in the internal affairs of other and the oil company management were countries, respect for human rights and demo- controlled by the British. The country was cracy, and priority to the peaceful settlement desperately poor, with infant mortality at 75%. of disputes. Positions in accordance with The Royal Air Force and the Special Air these principles will be declared in interna- Service together struggled until 1959 to put tional fora and even in public debates within down a revolt against these conditions. national fora. The actual practice is difficult Oman continued after its suppression to to put together because it remains largely secret serve British financial and other interests and one obtains only sporadic glimpses of it. very well. Extensive bombing of villages was What are the implications of these an integral part of this campaign. At one point, polemics for attempts to assess what contri- the British political agent recommended that bution Britain is making to the development the villages should be warned that unless of international customary law on the law they surrendered ringleaders, they would be relating to the use of force and the right of destroyed one by one, etc. (Curtis 1995: 98–9). intervention at the behest of a friendly gov- The Foreign Office paper fully recognizes ernment? For instance, the 1986 United the complexity and controversy surrounding Kingdom materials on international law this area of law. It continues, on mentioning contain a document produced by the plan- Oman in 1957, to say in paragraph II.7 that ning staff of the F.C.O. in July 1984, entitled international law does prohibit interference “Is intervention ever justified?” (Marston (except maybe humanitarian) when a civil 1986: 614–20). The question is how, or even war is taking place and control of the state’s whether, such a document is to be read crit- territory is divided between warring parties. ically, i.e. how to assess the relationship of At the same time, the paper claims that it is the document to an inevitably largely hidden widely accepted that outside interference in practice. For instance, in paragraph II.6, favor of one party to the struggle permits intervention under a treaty with, or at the counter-intervention on behalf of the other, invitation of, another state is mentioned. as happened recently in Angola. If one state requests assistance from another, There was a very full discussion within the then clearly that intervention cannot be Foreign Office in July and August 1957 dictatorial and is therefore not unlawful. In about the best way to present the U.K.’s rela- 1976, the Security Council recalled that it is tions with Oman and Muscat internationally, the inherent right of every state, in the exer- when an Arab bloc of States, led by Egypt, cise of its sovereignty, to request assistance tried to have what it called U.K. armed from any other state or group of states. An aggression against Oman placed on the 94 9780415418768_4_005.qxd 26/11/2008 02:36PM Page 95

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agenda of the Security Council. Legal advice regarded “Oman” as a sovereign state by Sir Gerald Fitzmaurice and Francis Vallat independent of Muscat until the Saudi and played a considerable part. The Foreign Egyptian intrigues which followed a Saudi Office was reacting to arguments put forward incursion into neighboring Buraimi in in a particular context, a U.N. forum. Arab 1952.28 States, backed by the Soviet Union, wanted This presentation of the situation was to have British military action in the successful when the U.K. argued it before the Sultanate characterized in U.N. Charter Security Council. Sir Pierson Dixon mirrored language as constituting aggression against the legal advice closely. There could be no the independent state of Oman, coming aggression against the independent state of from British forces in Muscat. Oman because none existed. The Sultan of Muscat and Oman had his sovereignty over both recognized since the nineteenth century. Fitzmaurice’s and Vallat’s legal Egypt and other countries claim that the inde- advice pendence of Oman was reaffirmed in the 1920 The advice from Vallat for the benefit of the Treaty of Sib. This treaty granted the tribes Secretary of State was that intervention, at the of the interior a certain autonomy but did request of the Sultan of Muscat, to put down not recognize Oman as an independent an insurrection by tribes in Oman was legal. state. This request was refused by the Sultan. Intervention is wrongful but that only refers Also the agreement was not a treaty, but to dictatorial interference, not assistance or merely an agreement between the Sultan and cooperation. Oppenheim gives numerous his subjects. Sir Pierson Dixon followed examples of military assistance to maintain Fitzmaurice’s line very closely about the later internal order, including Portugal in 1826, marks of sovereignty. He concluded by Austria in 1849, Cuba in 1917 and saying the U.K.’s action in supporting the Nicaragua in 1926–27.27 legitimate government of Muscat and Fitzmaurice is more explicit about the Oman had been in the interests of stability importance of the status of Muscat and of this area. If the subversion there had not Oman. Oman is not an independent state. In been checked, the consequences might have the international legal sense, it is not a state been felt beyond the sultanate and would not at all, but merely part of Muscat and Oman. have been to the advantage of any of the coun- The imam of Oman exercised no territorial tries in the region that signed the letter to place sovereignty. There are no frontiers between this issue on the agenda of the Security Oman and any other state or between Oman Council.29 and Muscat. An agreement, known as the The vote against putting the matter on Sib Agreement, was reached in 1920. the agenda was five to four, with two During the negotiations in 1920, a request abstentions.30 Only the Philippines denied the for independence was completely rejected. legality of an intervention at a request of a The Agreement worked well until 1954. government. The Soviet Union confined The Sultan’s sovereignty was recognized itself to generalities about the oppression by the imam, in that external affairs remained of the national liberation movement of the in the hands of the Sultan, i.e. concerning Oman people. There was little stress on individuals and their lawsuits with foreign the argument about outside intervention administrations. The imam’s adherents relied in Oman, except from France, which led the upon passports issued by the sultanate. vote against adopting the Arab item on the Judgments of the Muscat Appellate Court were Security Council agenda. The U.K. itself accepted in the interior. An attempt to assert played it down because it did not want to exac- independence in 1954 failed. No state had erbate its relations with Saudi Arabia.31 An item 95 9780415418768_4_005.qxd 26/11/2008 02:36PM Page 96

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to this effect was circulated to all the British compared to the Scottish highlands before embassies in the Middle East. Although the 1745. The Sultan was completely dependent U.K. knew of the Saudi involvement, a on Britain and powerless outside a few higher priority had to be given to drawing coastal towns. Wingate commented on a Saudi Arabia out of the Soviet and Egyptian copy of Dixon’s speech to the Security sphere of political influence (see also Nolte Council. He said that he could see nothing 1999: 86–9). This goal would have been lost wrong with it, except that he would have if one had entered into specific detail about expressed himself more frankly. The imme- Saudi subversive activities. Instead, the legal- diate comment of Walmsley was that while ity of a response to an invitation for assistance one might speak reasonably to reasonable was stressed. people, it was impossible to concede any point unnecessarily in the U.N.32 Wingate made a further detailed comment Pressure for public disclosure: on the Agreement of Sib and Sir Pierson Sir Ronald Wingate’s counsel Dixon’s speech. Treaties concluded by the However, further pressure came on the Sultan did not mean he had any effective Foreign Office from quite a different source: sovereignty over an undefined area. His The domestic media, in particular an article power had always extended only to a few in the Guardian of August 7, 1957. Pressure coastal towns and it would be impossible to grew within the U.K., in the media and hold that the Sultan exercised any sover- through questions in parliament, to uncover eignty over the interior between 1913 and what the exact relationship between H.M.G. 1955. Indeed, the interior tribesmen, who and the Sultan of Muscat and Oman was. hated the Sultan, could have driven him into Here, the picture which emerged in Foreign the sea had it not been for a strong battalion Office discussions was quite different from of imperial troops. This policy cost the U.K. the public face at the U.N. A focus for dis- a lot and served no purpose. It had been there cussion was whether to publish the Sib in the nineteenth century to keep the French Agreement which appeared to define the rela- out and to combat the slave trade. Both tions within the sultanate. This was thought reasons were long defunct. In 1920, Wingate, not advisable, as the more the history and oper- as political agent, undertook to reorganize the ation of the agreement was explored, the sultanate, putting Egyptian personnel in clearer it would become that the only coher- charge of administration. He, Wingate, and ence and stability that the sultanate enjoyed not the Sultan, refused to acknowledge the came from British support at every level. independence of Oman. He refused to re- The British political agent, now Sir Ronald cognize the imam of Oman as imam because Wingate, who had effectively written both of the religious significance of such an act. sides of that agreement, was still alive in 1957. It would have given the imam authority over In September 1957, Sir Ronald came to see the whole sultanate. However, the imam officials in the Foreign Office. He explained remained as head of the tribal confederation. to Foreign Office officials, in particular a The agreement recognized the facts of the Mr. Walmsley, that the western concept of situation in a way that permitted Muscat sovereignty was meaningless in the region. and the coastal Oman, on the one side, and The Walis, whom the Sultan maintained in the tribes of the interior Oman, on the other, Oman, did nothing and could not be said to exist as separate self-governing units. No to constitute a token of government. The question of allegiance to the Sultan arose. What entire sultanate of Muscat and Oman was, for the Sultan did in 1955 was not to reassert his all practical purposes, not administered. The authority but to take over the interior by armed situation there in 1954, as in 1920, could be force. This could be justified as necessary for 96 9780415418768_4_005.qxd 26/11/2008 02:36PM Page 97

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the security of the coastal regions. However, the unparalleled degree of ineptitude of the one also had to be careful about how to deal Sultan and even worse, his despatch made with the extraordinary rise in the Sultan’s the following “acid remarks” on British pol- revenues, derived presumably from oil icy: “Our influence has been entirely self- exploration rights which he had granted in interested, has paid no regard to the peculiar the interior tribal areas, and which necessit- political and social conditions of the country ated the provision of security for the drilling and its rulers and by bribing effete Sultans to parties in the tribal territories.33 enforce unpalatable measures which bene- Wingate’s comments were relevant to the fited none but ourselves, and permitting advisability of publishing the Sib Agreement them to rule without protest, has done more as a way of silencing British media contro- to alienate the interior and to prevent the versy about the status of the Sultan, in par- Sultans from re-establishing their authority than ticular the article in the Guardian of 7 August all the rest put together.”36 1957. It was thought that, on balance, pub- One might try to say that the agreement lication would merely show how uncertain had been violated, and ceased to exist by virtue the situation in Muscat and Oman was, of the subversion coming from Oman and so although selected journalists were shown it was quite pointless to produce it. How- the agreement on a confidential basis. A ever, if one attempts to argue that the bal- further detailed internal F.O. reading of ance of the agreement has been destroyed by the Agreement of Sib revealed that it was the aggression of Imam Ghalib and treats the difficult to use. The difficulty of the agree- agreement as no longer valid, to do this: “[We] ment was that it made no mention of should have to explain how completely he was sovereignty for either side, so officials reasoned in the pocket of the Saudis, and this would that they would have to elaborate a thesis that conflict with the Secretary of State’s decision the Sultan’s authority was implicitly assumed that at present we must avoid attacking the and that the burden of proof would be on Saudi Government over Oman.”37 Omanites to show they had any correspond- Therefore, it can be argued that in 1957, ing sovereignty. The whole question was that the senior Foreign Office officials did not think much more prickly because of a British that there was any realistic way in which they administration report which appeared on a could present publicly what they understood F.O. confidential print on the Buraimi: to be happening in the sultanate of Muscat “The Agreement of Sib virtually establishes and Oman, other than in the Charter language two states, the coast under the Sultan, and the of friendly states and supporting internal interior, that is Oman proper, under the rule order within them. In fact, there was no state of the Imam . . . The tribes and tribal leaders other than what Britain undertook to main- having attained in their own eyes complete tain, but the alternative would be for Saudi independence.”34 The best one could make Arabia, Egypt and eventually the Soviet of this would be to stress the words “virtu- Union to occupy a space if Britain were to ally” and “in their own eyes.” The Sultan’s vacate it. Dorril explains at length that fur- interpretation of this agreement was equally ther insurgency against the Sultan in the late valid. There was a consensus that this was also 1960s convinced the Wilson government of the direction of Wingate’s commentary.35 the need for change, and the Conservative One further difficulty is that while government gave the go-ahead at the end Wingate’s report as political agent states cat- of June 1970. It was agreed to replace the egorically that the demand for the independ- Sultan with his English-educated and more ence of Oman was refused, it also makes a competent son. It still took until 1975 to defeat number of uncomfortable points, if one had Chinese and Soviet-backed insurgency to rely on it by publishing it. He denigrated (Dorril 2000: 729–35). 97 9780415418768_4_005.qxd 26/11/2008 02:36PM Page 98

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It is ironical that assessments of Curtis international law is being interpreted, and Dorril, that the sultanate was so misgov- applied, followed or ignored. erned in the years before the 1970 coup, are The difficulty has already been seen to part of the implicitly official U.K. view of that lie in part with the continuing and presum- period from the hindsight of post-coup devel- ably inevitable secrecy of diplomacy where opments. The two authors rely on much strategic interests are engaged. This is, in effect, secondary evidence, but the secondary evid- to acquiesce to the vision that governmental ence is a book called Oman: The Making of structures for dealing with international rela- a Modern State (Townsend 1977). Townsend tions remain a hangover from the period was economic adviser to the Oman govern- of the high renaissance. A typology of this ment from 1972 to 1975. Curtis (2003: 279) world is provided by Jens Bartelson in A quotes him as arguing that, after the regime Genealogy of Sovereignty (1995: esp. chapter 5). change, the Sultan’s response to the rebels in The so-called modern state arising out of the the 1960s was not an alternative program with wars of religion of the sixteenth and seven- proposals for reform or economic assistance, teenth centuries is silent about its origins and but simply the use of even greater force. By primarily obsessed about its own security 1970, that policy promised to lose the sultanate needs. It can usefully be understood as the to communist-backed forces. This was not subject of Descartes’ distinction between acceptable. Furthermore, with the Shell- the immaterial subject and the material real- owned Petroleum Development (Oman) oil ity, which it observes, classifies and analyses. company producing oil in commercial quan- Knowledge supposes a subject and this tities by 1967, there was plenty of domestic subject, for international relations, is the revenue to allow scope for a more pragmatic Hobbesian sovereign who is not named, but social policy. names, not observed, but observes, a mystery for whom everything must be transparent. The problem of knowledge is the problem Conclusion: the international of security, which is attained through ratio- lawyers’ perplexity nal control and analysis. Self-understanding is limited to an analysis of the extent of the For the international lawyer, as well as the power of the sovereign, measured geopolit- international relations theorist, the question ically. Other sovereigns are not unknown that is most pressing is whether and how the “others” in the anthropological sense, but Charter paradigm and language for the ana- simply “enemies,” opponents with conflict- lysis and understanding of international soci- ing interests whose behavior can and should ety can retain not merely formal validity but be calculated. also a significant impact on the forces at work So, mutual recognition by sovereigns does in that society. Perhaps the least that one can not imply acceptance of a common interna- say as an international lawyer is that positions tional order, but merely a limited measure taken up by the U.K., or for that matter any of mutual construction of identity resting on other government, cannot be taken at face an awareness of sameness, an analytical re- value, or even be treated with anything cognition of factual, territorial separation. other than complete skepticism. Without The primary definition of state interest is not consistent and comprehensive access to the a search for resemblances or affinities, but a governmental policy-making process in matter of knowing how to conduct one’s which government international lawyers own affairs, while hindering those of others. may also have a significant input, it is impos- Interest is a concept of a collection of primary, sible to assess the process of decision making unknowable, self-defining subjects, whose in such a way as to determine exactly how powers of detached, analytical empirical 98 9780415418768_4_005.qxd 26/11/2008 02:36PM Page 99

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observation take absolute precedence over 26–78) and particularly also an article repro- any place for knowledge based on passion or duced there and published in The Singapore Year empathy. Book of International Law (Carty 2005). 7 FO/370/203, folios 210–11 (Foreign Office Within this framework of analysis inter- File 4704), quoted by Geoffrey Marston national law is perceived subjectively by (1990: 40, 46). each state in the light of the perspective it 8 The present author’s latest reiteration of this has of its own interests. It reflects on other point is to be found in the European Journal of states an image of international law which Legal Studies, vol. 1, 2007, “The yearning for unity and the eternal return of the Tower of is part of its image of itself in relation to Babel”, 1–28. its “others.” These images clash and may 9 Series I, Vol. VIII, edited S. R. Ashton, occasionally break through to one another. Whitehall History Publishing, Frank Cass, However, the level of existing research into 2002. the practice of international law does not 10 Documents, Doc.58, 17.2.1949, 204–207. 11 U.K., Foreign Office, FO 371/75815, permit one even to imagine how this might F14109. happen. There is no credible primary source 12 U.K., Foreign Office, FO 371/75818, F6028, based research into the interacting practices October 20 and 22, 1949. of international lawyers simultaneously 13 Documents, No.105, 397–402, CP (49) 214, within and across state bureaucracies. (CAB 129/37). 14 Documents, No.105, 402. 15 U.K., Foreign Office, FO 371/75826, F18535: 49, December 5, 1949. Notes 16 U.K., Foreign Office, FO 371/75826, F18535: 50. 1 See, for instance, the standard chapter on 17 U.K., Foreign Office, FO 371/75826, F “The sources of international law”, by Hugh 18695/1023/10, December 5, 1949. Thirlway, International Law, edited by 18 Documents, No.110, 417: 420, paragraph 12, CP Malcolm Evans, 2003, 117–44. This is (49) 248 (CAB 129/37). devoted to commenting on article 38 of the 19 Documents, No.110, 417: 421, paragraph 15, Statute of the International Court of Justice, CP (49) 248 (CAB 129/37). setting out the sources of law to which the 20 Documents, No.110, 417: 421, paragraph 16, CP Court will refer. Similarly the other standard (49) 248 (CAB 129/37). textbook by Malcolm Shaw, International Law, 21 Documents, No.110, 417: 422, paragraph 15, 5th edition, Cambridge University Press, CP (49) 248 (CAB 129/37). 2003, 68–87, also considers almost exclu- 22 Documents, No.110, 417: 422, paragraph 21, CP sively the case law of the international courts, (49) 248 (CAB 129/37). Documents provides with, in addition to what Thirlway/Evans edited notes that: “It was China’s entry into consider, a very superficial review of some the war (Korean) in October 1950 that put secondary literature on customary law. paid to any prospect of negotiations with 2 Ibid., and the literature cited therein: a com- the Communists to protect British firms . . . prehensive survey of doctrine, especially They were forced into such debt by taxes and “continental.” regulations that they had to close, leave China 3 See further, Marston (1990: 35), saying that voluntarily and hand over what remained parliamentary sources predominate in the of their assets to the Chinese Government. U.K. materials on international law, i.e. posi- Their withdrawal was announced in May tions taken by ministers before parliament. He 1952 and subsequent U.K. losses were estimated points out that only rarely is material made avail- between £200 million and £250 million,” able here which has not already been released ibid., 442–3. to the public. 23 Documents, No. 110, 417: 426, CP (49) 248 4 Aust’s 1986 International and Comparative Law (CAB 129/37). Quarterly article is discussed here. 24 Documents, No. 116, 435–6. Sir O. Franks to 5 What follows draws on Anthony Carty and Mr Bevin, telegram no. 5855, U.K., Foreign Richard A. Smith (2000: chapter 1, 1–40). Office, FO 800/462, December 17, 1949 . 6 This part of the argument will draw more par- 25 Documents, No.121, Mr Bevin to HM Repres- ticularly on Anthony Carty (2007a: chapter 2, entatives Overseas, 448–9.

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26 Original reference, L 280/1 Circular No.059, 31 ——, FO/371/126878/EA1015. found at FCO 25/046. The author has 32 ——, FO/371/126887/EA1015/371. benefited from an AHRC research grant to 33 ——, FO/371/126829: FO Confidential undertake archival research, and this document Note on the Agreement of Sib, and Sir was unearthed in the course of the project by Pierson Dixon’s Speech in the Security Dr. Orna Almog. Council of 20/8/1957, prepared by Sir 27 U.K., Foreign Office, FO/371/126877/ Ronald Wingate. EA1015/89. 34 ——, FO confidential print on the Buraimi at 28 ——, FO/371/126887/EA1015/365. 157. 29 ——, FO/371/126884/EA1015/282(A), 35 ——, FO/371/26882/EA1015/235. August 20, 1957. 36 ——, FO/371/26882/EA1015/235(A). 30 ——, FO/371/126884/EA1015/283, 37 ——, FO/371/26882/EA1015/235(A). August 20, 1957.

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6 International law as a unitary system

Anthony D’Amato

The thesis of this chapter is that rethinking inter- Toward a uniform terminology national law as a unitary system will yield important insights into the still controversial questions The terminology of international law has of how international law works and what role it become increasingly imprecise and muddled. plays in international relations. It begins by clari- As a result, many scholars are talking past each fying some of the key terms used in international other. Here are some suggested clarifications law, especially the distinction between consensual of some of the more important terms. and nonconsensual law. It then argues the case for It is convenient at the outset to divide inter- using a systems analysis perspective in order to build national law into consensual law and non- in the international legal system (ILS) as an actual consensual law. The former depends on the player in the international relations game. The pres- consent of the governed. It includes treaty law ence of the ILS transforms what was previously ana- and the law of title to territory (territory may lyzable as a two-person zero-sum game (between no longer be acquired by conquest). The A and B) into a three-person non-zero-sum game latter – law that applies irrespective of any (A, B, and the ILS). Under game theory, two- state’s consent – is usually called customary person zero-sum games can reach a maximin result law. The term “customary” is misleading; a solely through conflict (acts of war). By taking active better name for it would be “general” inter- part in the game, the ILS necessitates some resort national law. Here is a brief summary: to cooperation in order to bring the game to the equilibrium point. ILS is a purposive self-regulating CONSENSUAL NONCONSENSUAL system hardwired in favor of cooperation. LAW LAW Conventional Customary The thesis of this chapter is, as just stated, Written Unwritten that rethinking international law as a unitary Specific General system can yield important insights into still Applies only to Applies to all states controversial questions of the workings of the parties equally international law and the role it plays in international relations. First, however, we should Although a treaty can sometimes affect third take a moment to make sure that we are talk- parties indirectly, it cannot bind any state ing in the same language. directly other than the signatories. The 101 9780415418768_4_006.qxd 26/11/2008 02:36PM Page 102

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parties are bound “by convention” insofar as Oceans through various Canadian Arctic their relations to other parties are concerned. rivers and lakes. Some ships that now travel Why is general international law often through the Suez or Panama Canals would called customary law? The term “customary welcome the much shorter route through law” was imported into textbooks of inter- the Northwest Passage. However, its high national law in the late nineteenth century economic salience almost guarantees an for no apparent reason other than giving the international controversy. The Canadian gov- writers of those textbooks something to say ernment considers the Northwestern Passage about the source of general international part of Canadian internal waters, whereas the law.1 In 1890 Pitt Cobbett (1922) invented United States and other countries regard it a simile that has stuck: Custom is like foot- as an international strait, open to all. If we steps across a common that eventually could somehow ask all Canadian officials becomes a path habitually followed by all. whether they believe that there is a rule of Writers were quick to restate Cobbett’s international law that the Northwest Passage image as a metaphor: Customary law is is an international strait, we can be quite cer- formed by a norm that takes time to ripen tain that they will respond in the negative. into a binding rule of international law. Yet, If we ask the same question of officials of the it was asked, how can we pinpoint the time United States, we can be equally sure that they when the norm ripens or the footsteps will respond in the affirmative. We may well become a path? And what was the status of suspect that the uniformity of responses international law while the norm was ripen- within each of the two states reflects policy ing or the footsteps were trampling out a and not a penchant for telling the truth to path? Alas, the Latinism offered for curing the strangers. Presidents and other high gov- problem was worse than the disease: opinio juris. ernment officials only say things that serve When states act under a belief that their actions their strategic interests. Hence opinio juris can are required by international law, then they never be measured. It is not a test for law, for are said to be acting with opinio juris. Thus, it presupposes that which it seeks. all that seemed to be needed to determine when General international law, or just plain inter- the path formed or the norm ripened was to national law, is what states invoke to defend test or measure whether states were acting their entitlements against illegal acts by other under a belief that the norm in question was states. From time to time, some writers will legally compulsory. contend that there is no such thing as gen- However, no one in the 4000-year his- eral international law. Bismarck took this tory of international law has ever been able position in the nineteenth century, as did the to determine, even once, whether any state Soviet Union in the twentieth century. was acting under the belief that its action was Some officials in the Bush administration and compulsory under international law. Obvi- their academic apologists assert exceptional- ously states don’t have beliefs; states are ism – the idea that the most powerful state is artificial constructs. Are a state’s officials a not subject to international law. Every chap- reasonable surrogate for the state itself? ter in the book you are reading refutes these These officials may have beliefs, but how are extreme notions. International law provides those beliefs to be ascertained? By a telephone the legitimate framework within which states survey of the 1000 leading state officials? By interact with each other. Although some of a questionnaire? Consider a current dispute. the more interesting topics of international law With the advent of global warming, frozen concern law-in-formation, it is clear that waterways in Canada are beginning to thaw these topics would not even arise were it not and may open up the fabled Northwest for a shared framework of boundary delimi- Passage connecting the Pacific and Atlantic tations laid down by international law. Even 102 9780415418768_4_006.qxd 26/11/2008 02:36PM Page 103

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the most basic player in international law, (between A and B) into a three-person non- namely the state, is defined by international zero-sum game (A, B, and the ILS). Under law. We know an entity is a state when inter- game theory, two-person zero-sum games national law tells us it is a state.2 can reach a maximin result solely through In short, if a new state calls itself a state, it conflict (acts of war, etc.).4 But a three- is, in fact, scanning the panorama of legal rules person non-zero-sum game can only reach a that tell us what a state is. If the facts com- maximin equilibrium by some mixture of port with its assertions, the new state is close conflict and cooperation. By taking active part to achieving statehood. in the game, the ILS necessitates some resort to cooperation in order to bring the game to the equilibrium point. This conclusion Analytical advantages of explains the large degree of cooperation systems analysis through the history of international relations: we find that the non-participating International law is often, in fact off- states are usually the most powerful force handedly, called a system.3 If we take seriously for cooperation. If it were not for this third- the proposition that it constitutes a system, party initiative, international relations over we just might change forever the way we think the years would be buffeted by a series of about international law and the role it plays random wars with random outcomes. There in international relations. would be nothing like the degree of cooper- The first change in our mindset is to ation we enjoy today in a global economy that regard the international legal system (hence- could have ever arisen by chance out of a forth “ILS”) as an actual player in the random process. international relations game. The rules of A third change in the way we think about international law that are incorporated in the role of law in international relations the ILS are the resultants of vectors of com- follows from the “cooperation” element just promises and dispute resolutions extending discussed. We found that non-zero-sum back to the beginning of recorded history 4000 game theory creates a kind of vacuum for the years ago. A rule of international law encap- element of cooperation to fill in, for there can sulates the aggregate interest of the states of be no equilibrium solution of a non-zero-sum the world. Thus if states A and B are having game without resort to cooperation (in addi- a dispute, the ILS insists on intruding like a tion to conflict which is always abundantly busybody. It defends the collective interest of present). Why is the ILS biased in favor of the non-participating states. In doing so it also cooperation when it might have consisted of defends the long-term interests of both A and a random collection of rules? The answer is B in international stability, even if neither that the ILS is hardwired in favor of cooper- A nor B is willing to acknowledge this ation, peace, and stability. Hence, it is neces- beneficial input in the heat of their battle with sarily biased against conflict. States are not each other. The bottom line is that interna- similarly hardwired, of course; we know this tional law should no longer be viewed as a from the fact that states have often resorted set of background rules; rather, it is an actual to war when it was unnecessary for their self- player with real beliefs and objectives that defense or even disastrous for their self-interest participates in every bilateral or multilateral (e.g. Saddam Hussein’s attack on Kuwait). dispute among states. Of course, the hardwire explanation, The second shift in the way we think about standing alone, is empty. We need to know international relations is that the presence how the hardwiring came about. To go of the ILS transforms what was previously there, we first need to establish that the ILS analyzable as a two-person zero-sum game is a purposive self-regulating system. We will 103 9780415418768_4_006.qxd 26/11/2008 02:36PM Page 104

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then find that the hardwiring is the result of 190 states that are the creators/subjects/ a process akin to Darwinian evolution. enforcers of international law.8 It carries an additional “emergent” weight because it represents the precedents of previous dispute Concept of a purposive system resolutions – the wisdom of the status quo in the dynamic sense described by Edmund Systems analysis has been around a long Burke (see e.g. 1774, 1790). time. At first, static systems were the objects An attempt was made in 1975 to apply of scientific investigation: think of the steam cybernetic modeling to law (D’Amato 1975; engine or the wrist watch. The invention of Kiss and Shelton 1986), but what was not fully the thermostat in 1885 gave rise to the first available at that time was the theory of cybernetic system, one that seemed to be pur- autopoiesis. Even so, other important ele- posive, namely, keeping room temperature ments of general systems theory were being close to a desired norm. During the Second developed in interdisciplinary contexts. World War, John von Neumann developed Prominent is the theory of the stability of a torpedo for the United States Navy that, after complexity. Complex systems tend to be more being aimed at its moving target, would self- stable than simple systems. (A tricycle is adjust its direction to home in to the target more stable than a bicycle.) The large num- as it moved (see Wiener 1948). This, too, ber of states in the world in the twentieth seemed to be a purposive system. Many century with their complex interactions made diverse fields, such as engineering, manage- it possible for the international system to absorb ment, and social science, saw the value of the shocks of two world wars. By contrast, cybernetic modeling in their own research. there were very few states of any significance The definition of system has been steadily in ancient Rome, making it possible for honed so that today we may define a system the Roman Empire to conquer and absorb as a mechanical or theoretical organization all states within its extended reach. Inter- of components, distinct from its environ- national law was “suspended” during the ment, that adds something new, and often Roman era because of the absence of a unexpected, to our understanding of the plurality of nations.9 ensemble of components out of which it The concept of recursion was another was constructed (see e.g. Ashby 1960; Beer significant development in general systems 1959; Buckley 1968; Klir 1969; Laszlo 1972, theory. We have to acknowledge the fact that 1973; McCulloch 1965; Sutherland 1973; but any system containing norms (such as the ILS) see also von Bertalanffy and Rapaport 1956).5 will find that the norms do not precisely fit One common definition that was generally the empirical facts of the system’s environ- accepted by researchers was that a system is ment. For example, the norm specifying the a self-organized collection of elements that are breadth of the territorial sea might be three interconnected in the sense that any force miles at a time when most states were pro- imparted to one of them affects the positions claiming and enforcing a 12-mile limit. The of all of them.6 Ludwig von Bertalanffy disconnect between norm and reality must be (1962: 1, see also, generally, von Bertalanffy resolved if the model system is to be accur- 1968) defined a system as a “complex of mutu- ate. This disconnect cannot be resolved a pri- ally interacting components.” But a system is ori (who is to say that three miles is “better” more than that; it is an entity in itself that is than 12?). Model builders thus resort to different from, and perhaps greater than, the pragmatism. They try out certain norms on sum of its parts.7 Accordingly, the ILS has a the environment, and then tinker with them. role in international politics that is more than The tinkering is designed to see whether the sum of the interests of the approximately the environment will react to the norms, or 104 9780415418768_4_006.qxd 26/11/2008 02:36PM Page 105

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whether the environment is being stubborn to the maintenance and perpetuation of the such as to require the model to make adjust- ILS itself. This does not necessarily involve ments. This back-and-forth adjustment pro- “moral” or “justice” considerations except to cess is called recursion. It reduces a large the pragmatic extent that ignoring such con- circularity into a set of tiny circles each of siderations might bring about armed conflict which can be adjusted. If the process is suc- that could destabilize the system.10 cessful, the system will contain a rule that both Light was cast from an unlikely direction explains the facts and justifies them. on the problem of why and how complex To be sure, a newcomer to international systems can be purposive. In 1980, Chilean law might object that a recursive process can- biologists Humberto Maturana and Francisco not be costless. Recursion dulls the edge of Varela (1980) refined the concept of the the rules and hence in the long run under- self-organization of systems.11 Their theory mines their ability to draw sharp distinctions of autopoiesis defines living systems as self- between closely argued positions. However, producing units which maintain their essen- there is a simple evaluative test to see if there tial form, perpetuating themselves according to is too much recursion. Recall that the rules their internal organization. Or otherwise stated, of international law arose from the aggregate the system produces its own organization interest of states. Thus the rules are very “close” that maintains itself in the space in which its to what the behavior of states would be if there components exist. were no rules. Or to put it another way, the As a complex system, international law rules of international law do not get in the closely resembles the self-regulating systems way of important aggregate interests. For described by Maturana and Varela. It is sep- example, if a rule blocks A and B from going arate from its environment but at the same to war against each other, then even if both time interacts with its environment. The A’s and B’s own interest in going to war is interaction, of course, consists of providing high, once we add in the countervailing rules of decision and guidance when con- interest of the remaining 188 states in the world flicts arise between states, and of assessing the in preventing war, we find that the 188 efficacy of those rules in conflict resolution. swamps those two. In other words, the rule A recursive process modifies the rules when hardly budged aggregate behavior even they need updating. The ILS makes the though it highly impacted the behavior of two modifications according to its internal of the states. organization and processes. Thus when inter- It is thus clear that the development of national lawyers argue the existence of a customary international law over time has purported rule of international law and cite ensured the emergence of rules that do not various precedents and events in support of depart appreciably from patterns of state their argument, they are obliquely describing behavior. This may seem a weakness of the internal organization of the ILS.12 international law from a moralistic point of We can now begin to see that the ILS has view, but it is also a strength of international no direct interest in reducing conflict or pro- law from the self-preserving point of view. moting cooperation in its environment – that To restate the important point made above, is, in the real world – but rather is only inter- the “successful” norms in the Darwinian ested in preserving and maintaining itself. struggle taking place in the international Its purpose is nothing other than the preser- arena are those that are close to the inferences vation of its own existence. This is the same we would draw from state behavior if there purpose we find in every animal and every were no such thing as international law. The plant in the world. All animals and plants that ILS is interested in an orderly and peaceful lacked this purposiveness were destroyed by international environment that is conducive their predators eons ago. The drive to self- 105 9780415418768_4_006.qxd 26/11/2008 02:36PM Page 106

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preservation is proportional to the brain those rules could enjoy a severable existence power and complexity of the animal. For in general international law.13 example, a clam has hardly any intelligence, The ILS in the example just given was but it has evolved a hardwired shell that has not interested per se in the breadth of the been successful in protecting it from pre- territorial sea. Neither was it even directly dators. At the other extreme, humans have interested in reducing friction between not evolved a carapace, which would have coastal states and others that might disfavor required a vast investment of energy. Instead, encroachments on the freedom of the seas. by evolving a larger brain, Homo sapiens have Rather, the ILS was interested in preserving been able to outrun, outbuild, or outwit their itself. Changing the rules of its environment natural predators. (If humans had failed to do thus becomes desirable from the vantage so, you would not be reading this sentence.) point of the ILS if there is an overall The ILS distills the intelligences of several enhancement of global peace, order, and sta- thousand international lawyers and states- bility. If the world environment is peaceful persons. In controversies between states, the and orderly, the ILS will grow and thrive. But party that can show its preferred rule to be if war breaks out, legality could be an early friction reducing obtains an advantage in the casualty. Indeed, a nation struggling for its life negotiation. Even if the advantage is slight, may view war crimes as a trap: if it holds back the cumulative effect of preferring tension- certain actions because it is law abiding, the reducing rules over the centuries of conﬂicts enemy might well disregard legal constraints and controversies is a set of well-honed rules entirely and thus gain a military advantage.14 of today’s international law. If mankind then somehow saves itself after the Suppose an occasional rule shows up as out- global war, there could be no assurance that dated and potentially friction producing. the old system of international law would The three-mile limit of the territorial sea may be restored. Anarchy could bring about the have been an example of such a rule. It had permanent demise of the ILS. lasted for several centuries. But after the Second World War, many coastal states began to assert control over a broader terri- Coercive systems torial sea, both for reasons of national security in the face of longer ranged weapons It is one thing to have a legal system; it aboard ships, and for extending the state’s is another to have people obey it. Do states monopoly over coastal ﬁsheries. Some Latin actually obey international law, or do they American countries even proclaimed a 200- simply act in their own interests while sim- mile territorial sea. During the 10-year con- ulating obedience? In a chapter published ference on the law of the sea convention, a in advance of her forthcoming book co- consensus emerged among the delegates that authored with Dean Harold Koh (Hathaway the most stable rule would provide for a 12- and Koh 2005), Oona Hathaway says that mile territorial sea and a 200-mile exclusive neither advocates nor skeptics of international economic zone. These rules quickly became law are looking at the whole picture: absorbed into international practice well before the treaty on the law of the sea was Both fail to consider the role of internal ready for signing. Indeed, even if nations enforcement of international treaties on viewed the resulting Law of the Sea countries’ decisions to accept international Convention as non-severable, the friction- legal limits on their behavior and then to reducing quality of the new territorial sea and violate or abide by them. exclusive economic zone was so apparent that (Hathaway and Koh 2005)

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As a defense of international law, this is very has never been a legal system on this planet weak tea. Professor Hathaway is only talking that allows citizens to decide which laws they about treaties, which have always been the will obey. It is no answer to the question of clearer case of compliance with international compliance to say that states internalize rules law (compared to general international law). that they decide to internalize. International Second, she is only talking about an ex- law skeptics such as Professor Hathaway tremely limited form of compliance. She is seem to use the term “international law” as saying in effect that if a state accepts Rule X a fashionable tag, but their arguments prove by incorporating it into its domestic law, then that they are not talking about real law at all. that very incorporation acts as a brake on I argue that international rules are political leaders who might otherwise wish to enforced in exactly the same way in which gain a temporary advantage in international domestic rules are enforced. Every nation pre- relations by violating Rule X. Although this scribes internal punishments for illegal acts. proposition is undoubtedly true (it has been ( Just try to argue to a prosecutor or judge that argued by American scholars for years), it the law is mere window dressing.) The cru- amounts at best to saying that states only have cial point is that these punishments consist of to obey the rules of international law that they deprivations of the defendant’s legal rights. For wish to obey. They may pick and choose, example, a defendant who loses a civil case accepting the rules they like and rejecting the must pay damages; if she does not, the state others. It is clear that Professor Hathaway has may invade her right of property by seizing not taken a middle position in the debate. her car and selling it at a sheriff ’s auction. A Whatever her intent, she has come down defendant convicted in a criminal case may squarely on the side of the skeptics. find that his rights to liberty and freedom of Her chapter illustrates a general malaise movement have been forcibly taken away by that younger scholars have with international the judge’s prison sentence. In states that allow law. They see the occasional but important capital punishment, a criminal defendant violations and gaps that are the very tip of the may find that his right to live has been taken iceberg while failing to see the vast and com- away. Thus in all cases, whether civil or crim- plex system of rules beneath the surface that inal, the penalty inflicted on the losing side are not only routinely obeyed by nations but is the curtailment of one or more of the los- are not even questioned. What nation today ing side’s legal rights. would attempt to extend its territorial sea When we turn to states as the subjects beyond 12 miles? What nation would claim of international law, obviously a state that the right to arrest tourists and place them transgresses international law cannot be pun- in indefinite detention? These and millions ished by being incarcerated or annihilated. of other potential violations of general inter- But each state has a bundle of rights under national law do not even come up for international law. Indeed, since the state is an consideration. artificial entity, it may be said that a state is However, putting aside routine consider- nothing more than the rights it is accorded ations of compliance, the harder cases cannot by international law. These rights are the be ignored. Is international law a coercive sys- flipside of obligations. For example, state A tem? Are its rules enforceable against the states? has a right to a 12-mile territorial sea, and it How? Are they enforceable against a super- also has an obligation to respect B’s right to power? If not, then rules of international law a 12-mile territorial sea. are, in Professor Hathaway’s words, “mere We now see that the rules of the ILS form window dressing” (Hathaway and Koh a closed loop. Rules that gives state A rights 2005). We can be certain of one thing: there are also the rules that may be taken away

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(temporarily) to punish state A for violating number of American diplomatic and consular the rights of another state. For example, the personnel in Tehran. The hostage taking led international imposition of sanctions on to severe repercussions in the United States South Africa and Rhodesia during their including perhaps the defeat of presidential apartheid regimes, which impeded their incumbent Jimmy Carter in the election of rights of international commerce and naviga- 1980. tion, played a significant role in the eventual Superpower vulnerability is enhanced by dismantling of the illegal (under interna- the bluntness of the military instrument. For tional law) practice of apartheid. example, even though the United States Suppose, however, that the state com- could have annihilated Iran with a volley of mitting the initial violation of international nuclear ICBMs, such a wholly disproportion- law is a superpower. The kinds of economic ate retaliation would not have saved the sanctions that worked against South Africa hostages. The global scatter of assets and per- and Rhodesia could not realistically be en- sons from all nations has virtually assured the forced against a superpower. Yet if we think universal efficacy of the international reprisal beyond the territorial limits of the superpower, system. Indeed, in a shrinking world, the we find that it has nationals and investments reprisal system is likely to become increasingly all over the world that are, indeed, vulner- efficient. Perhaps there is a correspondence able as punishments or sanctions. between the efficacy of peaceable reprisals For example, at any given time there are and the recent finding that there has been hundreds of thousands of American citizens a steady decline in the global magnitude of either traveling or residing abroad. The armed conflict following its peak in the early Census Bureau reports that in 1998 there were 1990s (Marshall and Gurr 2005: 1). over 56,000 Americans traveling abroad When Iran detained 50 American diplo- (compared to 46,000 foreign tourists visiting matic personnel in 1978, it claimed that its the United States). Even more striking are the act was justified by the retaliatory rule of inter- figures of American citizens residing abroad national law. In presenting its case before the as reported by the Bureau of Consular Affairs International Court of Justice, Iran claimed in 1999. There were 27,600 U.S. citizens the detention of the hostages was just a residing in Buenos Aires, 55,500 in Sydney, “marginal” response to “more than 25 years 250,000 in Toronto, 48,220 in Hong Kong, of continual interference by the United 75,000 in Paris, 138,815 in Frankfurt, States in the internal affairs of Iran, the 45,000 in Tokyo, and 441,680 in Mexico City. shameless exploitation of our country, and Among the smaller countries that could numerous crimes perpetrated against the become “hot spots,” the Bureau reports 646 Iranian people, contrary to and in conflict with American citizens living in Albania, 1320 in all international and humanitarian norms.” Bangladesh, 1600 in Bosnia, 440 in Congo, The Court dismissed the Iranian claim in lan- 2000 in Cuba, 10,000 in El Salvador, 546 guage that reaffirms the “closed loop” view in The Gambia, 11,000 in Haiti, 18,000 in of international law presented earlier: Israel (Tel Aviv), 8000 in Jordan, and 6639 in Kuala Lumpur, and those are taken from [L]egal disputes between sovereign States by just the first half of the list.15 To these figures their very nature are likely to occur in political contexts, and often form only one ele- must be added the many thousands of Amer- ment in a wider and long-standing political ican military personnel and their depend- dispute between the States concerned. Yet ants on foreign bases. How many American never has the view been put forward nationals must a country threaten to make the before that, because a legal dispute submit- United States take notice? Just 50 were ted to the Court is only one aspect of a polit- sufficient in 1978 when Iran arrested that ical dispute, the Court should decline to 108 9780415418768_4_006.qxd 26/11/2008 02:36PM Page 109

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resolve for the parties the legal questions at Conclusion issue between them.16 We saw in the second and third sections of The Iranian hostages case has another im- this chapter that the ILS gives expression to portant lesson for us regarding retaliation as its database of rules of general international punishment. When the 50 American diplo- law when the rules are relevant to a dispute matic personnel were arrested in Tehran, or controversy. We also saw in the fourth sec- the first reaction on the part of the State tion that the same database of rules serves the Department was to arrest 50 to 100 Iranian enforcement function of international law: diplomats and consular officials in the A state that violates international law may United States and then offer a trade. Even expect that one or more of its rights in the though this strategy appeared as a possibility database might be suspended as an official in the New York Times, American officials reprisal or punishment for the violation. quickly realized that the United States might Finally, in addition to its legal competences actually be doing Iran a favor by arresting its just mentioned, the ILS represents the polit- diplomats. The Iranian diplomats in the ical interests of all the states that are not directly United States had been appointed by the Shah involved in a given dispute or controversy. of Iran, who had been recently deposed. Given this combination of competences, it The new fundamentalist Iranian government is clear that the ILS does not have its coun- would soon be in the process of replacing those terpart in domestic legal systems: diplomats with ones more loyal to the new regime. Therefore the Iranian government COMPETENCES would probably welcome the indefinite International Domestic legal system incarceration of the Shah’s diplomats by the legal system United States and would not have any desire 1 Database of 1 Database of to trade them for the American hostages. all laws all laws Thus, from the American point of view, a 2 Control 2 Reprisals controlled tit-for-tat retaliatory strategy would probably reprisals by political branch not work. Instead, the State Department 3 Represent 3 Does not opted for what I have called a “tit-for- political represent political a-different-tat” strategy (D’Amato 2004). interest interests Their idea was to deprive Iran of one of its international legal rights that carried an The puzzle for students of international law exceptionally high cost, and then trade that is not whether international law is effective deprivation for the release of the American or whether the ILS is a powerful player in the hostages. Very quickly President Carter game of international politics, but rather issued executive orders freezing all bank why the role of international law is so under- accounts owned by Iran in American banks. appreciated. A large part of the reason is the In addition, most European countries coop- academic separation between departments erated by freezing Iranian bank accounts in of political science and law schools. The banks in their countries. The banks were political scientists, encouraged by Hans delighted to oblige, because it meant that they Morgenthau in 1946, viewed rules of law might avoid paying interest on the Iranian as impediments to the national interest accounts. The interest rates at that time were (Morgenthau 1946). By defining interna- at a peak of about 15%. Eventually Iran tional relations as “power politics,” rules of caved in, returned the American hostages law as well as rules of morality were pushed unharmed, and received access to its bank aside as ivory-tower idealism. Meanwhile, on accounts (but not the earned interest). the other side of the campus, law schools 109 9780415418768_4_006.qxd 26/11/2008 02:36PM Page 110

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sought but could not find points of entry into of essays that label international law as “frag- the realist carapace in which the political sci- mented” (see e.g. Nicolaidis and Tong 2004) entists had encased international relations. (nearly all participants agreeing that international law is fragmented). How can the communications gap be- 4 Jack L. Goldsmith and Eric A. Posner view tween political science and international law international relations as a two-person zero-sum be bridged? The burden should perhaps be game with occasional nods to a third person placed on international lawyers to start the (e.g. the Prisoner’s Dilemma) in their recent construction of the bridge. The reason for book, The Limits of International Law (2005). It is no wonder that they believe the rules are assigning this burden to them is the existence there just to be manipulated for the strategic of an educational imbalance: most lawyers advantage of whatever state is doing the have had courses in political science in col- manipulation. Their assumption that inter- lege on their way to law school, whereas most national rules lack a purpose simplifies their political scientists have gone straight from analysis: the rules, being random, simply form part of the environment. What is left is a two- college to Ph.D. programs without taking any person zero-sum game (the manipulating state courses in law. versus all the other states) that either proceeds By taking systems theory seriously, lawyers randomly or proceeds at the behest of the most may find that the ILS as described in this chap- powerful state. Clearly, they have an im- ter might serve as the long-awaited interdis- poverished view of international law. Their willingness to see international law end, as ciplinary bridge to political science. It is at the expressed in the title to their book, is simply very least an intellectual vehicle for taking the product of their belief that international law rules out of the background of international never got started. To the contrary, we argue relations and promoting them to the status that the ILS is itself a significant player in a com- of a player in the game of international pol- plex non-zero-sum game of politics among which nations states cannot simply manipulate itics. This promotion dramatically changes the the ILS; they have to take account of it. The nature of the game from a two-person (my ILS takes an active role in avoiding, reducing, country versus all others) zero-sum game to or resolving conflicts. It also promotes inter- a three-person non-zero-sum game (conflict national cooperation by fostering rules that plus cooperation) that, methodologically and maximize the interconnections among states. (Free trade is arguably the most important analytically, offers a far more realistic under- “connector.”) International relations is a large standing of international relations than either complex system within which exists the ILS, the political scientists or the international a self-regulating purposive system. lawyers have come up with separately. 5 The only “system” that has no environment is the universe; for that reason, it is probably misleading to call the universe a system. 6 A system can be open or closed, and still fit Notes this definition. Thus, the human body is an open system (because it ingests oxygen and food 1 Customary law originated in the writings of and excretes carbon dioxide and waste prod- Continental legal sociologists and then im- ucts). But if we enlarged our definition to ported into international law. See the account “human body + environment,” then it could in Anthony D’Amato, The Concept of Custom be regarded as a closed system. This frame-of- in International Law (1971: 47–56). reference problem is similar to the problem of 2 The status of some would-be states are at the entropy of system vs. subsystem (Nicolis present contested under international law, and Prigogine 1989: 160–64). such as Taiwan, Kosovo, The Vatican, 7 For example, any living organism is something Monaco, Puerto Rico, and the Isle of Man, quite distinct – and unpredictable – from the not to mention Transnistria. collection of its chemical elements. “Living 3 The term “unitary system” used in the title of matter” could not have been predicted from this chapter is mildly redundant. It is intended such a collection. Or to take a case of an inert to emphasize the difference between the element: Imagine meeting someone living on holistic approach taken here and the recent spate a remote island in the equatorial zone in the

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Pacific Ocean who had never seen or heard body that objectively require for their con- about ice. He would hardly have reason to tinued functioning inputs of energy in the believe you if you said that if water is cooled form of nutrition. sufficiently it can become so hard that people 13 For further argument on this point, see can walk on it. Ice is an emergent property of D’Amato 1985. water (and water is an emergent property of ice). 14 Several decades ago there was public agitation 8 At present there are approximately 190 states for a no-first-use treaty regarding nuclear in the world. weapons. The United States said it would not 9 The Roman jus gentium should not be confused support such a treaty because it could amount with international law. It involved only the to unilateral disarmament. In other words, the extension, with modifications, of Roman law United States would refrain from first use to the outlying provinces. For further details whereas its opponent might simply violate the see D’Amato, 1971: 237–40. treaty. The most notorious precedent in this 10 The developing law of human rights is an exam- respect occurred in June 1941 when Hitler ple. Although states remain highly reluctant to suddenly invaded his treaty ally the Soviet outside interference in their internal affairs, Union. Stalin was shocked and went into seclu- human rights would hardly deserve the name sion for the entire first week of the invasion; if they did not constrain the actions of one’s he could not bring himself to believe that Hitler home government. had done such a thing. 11 Autopoiesis is the process by which a system 15 See http://www.pueblo.gsa.gov/cic_text/state/ produces its own organization and then amcit_numbers.html. These numbers do not maintains itself in the space in which its com- even include hundreds of thousands of U.S. mil- ponents exist. See http://pespmc1.vub.ac.be/ itary personnel and their dependants in bases ASC/AUTOPOIESIS.html. all around the world. 12 If I say I’m hungry, I am obliquely describ- 16 United States Diplomatic and Consular Staff in ing the medical condition of the cells of my Tehran, 1980 ICJ Rep. 3, Para. 37.

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7 International law in the ancient world

David J. Bederman

This briefly assesses the historiographic literature has either emphasized new, empirical re- about the idea that ancient state systems predicated search, or has adopted an anthropological their relations on the rule of law. It examines ancient attitude of moral relativism in legal relations, practices in relation to diplomatic privileges and it remains a potent school of thought immunities, treaty conclusion and observance, and (Diamond 1971). If all of this were not the initiation and limitation of armed conflict. There enough, there is the second, and as yet was a coherent sense among ancient peoples from largely unquestioned, belief that interna- Near East and Mediterranean traditions that state tional law, even today, is a primitive legal order relations should be conducted in accordance with estab- (Dinstein 1985). lished norms and values. The confluence of these two intellectual forces has meant that the study of ancient international law has had, of late, few advocates. An historiographic introduction Those doing serious scholarship on ancient legal systems have evinced little interest This chapter examines the idea of international in exploring such an abstract area as legal law in the ancient world. At the outset one restraints on interstate relations. The attitude must be aware that the entire project might of legal historians towards ancient international be condemned with the charge of anachron- law has thus been one of indifference. ism (Preiser 1984: 128–31). The study of a Alas, the same cannot be said of contem- law of nations in antiquity suffers, in essence, porary international law publicists writing on from a double blight. First, there is the the subject of a law of nations in antiquity. perception that all law in ancient times Indeed, one can say that the opinion of a was primitive. Ancient law was formalistic, majority of modern international lawyers dominated by fictions, had a limited range of is that ancient states were incapable of legal norms, and was based solely on religious observing a law governing their interna- sanction. In short, it lacked the essential tional relations. Consider the views of a few characteristics of a modern, rational jurispru- leading publicists. In Lassa Oppenheim’s dence (Hoebel 1954: 258–86; Vinogradoff well-respected manual on international law, 1920: 1: 364). Although this critique has been he noted that: “International law as a law largely disproved by modern scholarship that between sovereign and equal states based on 115 9780415418768_4_007.qxd 26/11/2008 02:36PM Page 116

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the common consent of those states is a prod- This contribution hopes to redress some of uct of modern Christian civilization, and these historiographic and intellectual defici- may be said to be about four hundred years encies by first considering the existence of old” (Oppenheim 1948: 68). Modern writers authentic state systems in ancient times. have insisted that ancient states did not Next, I will briefly examine three fundamental possess a notion of sovereignty and that there areas of states’ relations that appeared to be was no sense of universal community, and influenced by consistent rules or norms of without these two elements the idea of inter- international behavior: (1) the sending and national law in antiquity was a nullity receiving of ambassadors; (2) the making and (Brierly 1958: 20; Shaw 1986: 14), Other enforcement of treaties; and (3) the initiation writers have emphasized putative features and conduct of hostilities. From this narra- of an ancient law of nations that one would tion, broad patterns of ancient state practice instantly recognize as being somehow asso- can be defined and analyzed, leading to the ciated with any “primitive” legal system: conclusion that there did exist in the ancient the emphasis on religious (and not legal) sanc- world a set of sources, processes and doctrines tions; the inability to develop consistent, that constitute the beginnings of an interna- customary rules of state conduct; and the belief tional legal consciousness. that there could never be a condition of peace between ancient states (Heffter 1881: 12; Maury 1859: 3: 401–402). Ancient state systems This modern critique of the intellectual soundness of referring to a law of nations in The scope of this chapter is limited to three antiquity has served many purposes. One, of general periods of antiquity. They are (1) course, is to provide an acceptable story for the ancient Near East including the periods the emergence of international law, not only subsuming the Sumer city states, the great as a cluster of legal doctrines, but also as a empires of Egypt, Babylon, Assyria and the learned study. The inability of some modern Hittites (1400–1150 bce), and a later, brief scholars to perceive of an international law period focusing on the nations of Israel and prior to its Grotian origins has been discussed their Syrian neighbors (966–700 bce); (2) the elsewhere, and need not be repeated here. Greek city states from 500–338 bce; and (3) There is also a reproach here, which I read- the wider Mediterranean during the period ily credit, that antiquarian pursuits in tracing of Roman contact with Carthage, Macedon, international law doctrines to some origin Ptolemaic Egypt, and the Seleucid Empire shrouded in the mists of time, is a silly and (358–168 bce).1 My thesis is that the tradi- (ultimately) distracting exercise. The strong tions of statecraft that were developed at an reaction that contemporary publicists have early time by the Sumer city states and their held to the idea of international law in anti- Akkadian conquerors, and reformulated by the quity may, in part, be explained as a reaction Assyrians and Hittites, were transmitted to later to those earlier writers who “inordinately cultures through the Egyptians and Israelites extoll[ed] antiquity to the disadvantage of the and Phoenicians, and thence to Greece, modern age” (Phillipson 1911: 2: 166). Even Carthage, and Rome. worse, there were those who attempted to It is for this reason that I do not survey use ancient authorities in the pursuit of the great international law traditions of India some instrumental historiography, particularly and China in this chapter. The literature avail- those who were advancing strong, Euro- able on the political cultures and international centric characteristics for modern doctrines societies of ancient India (from the post-Vedic (Rostovtseff 1922: 32–3; Scupin 1984: 7: period until 150 bce) is large and of gener- 132–3). ally high quality,2 as is that on the Eastern Chou 116 9780415418768_4_007.qxd 26/11/2008 02:36PM Page 117

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and warring states periods in China (770– the existence of states and the identification 221 bce).3 (For considerations of the general of conscious value systems – are essential in theory of international relations in ancient the context of antiquity. India, see C. H. Alexandrowicz, 41 Brit. Y.B. Most contemporary scholarship has Int’l L. 301 (1965); Ved P. Nanda in Janis accepted both the fact of the existence of and Evans (eds) (1994).) Nevertheless, there ancient states and the reality of inter- is simply no historical evidence to suggest national relations in antiquity (Ago 1982: that there was any substantial diplomatic 214; Paradisi 1951: 355–6). The city states contact between Indian and Chinese cultures, of ancient Sumer and Mesopotamia, as well or between these great Asian international as the great Near Eastern empires that subsystems and those of the Near East and sisted between 1400–1150 bce (including Mediterranean. This is surprising in view of Egypt, Babylon, and the Hittite, Mitanni and the extensive economic and religious contacts Assyrian empires) had at least an inchoate between all of these culture centers in the identity as an authentic state system (Ago 1982: ancient world. But without that essential 215; Preiser 1954: 269; Scupin 1984: 133). element of diplomatic contact and continu- Even better documented are the interstate ity, I believe it prudent to exclude from the relations of the ancient Greek city states, wider consideration of this article Indian and particularly in the period from 500 to 330 bce Chinese contributions to the development (Adcock and Mosley 1975: 128, 144–50; Ago of international law.4 I recognize that this 1982: 222; Low 2007: 33–76; Phillipson exposes the study of ancient international 1911: 1: 32–7; Scupin 1984: 134–5). Lastly, law to the additional charge of Eurocentrism the Roman Republic’s rise to empire from and western cultural particularism, but I see 358–168 bce involved competition with no alternative given the current posture of many state polities, including Carthage, scholarship in this field, and the paucity of Ptolematic Egypt, Macedon, and the historical sources and material. Seleucid Empire (Ago 1982: 229; Phillipson The three time periods and regions that are 1911: 1: 106–11; Preiser 1954: 131–32; examined here all had one thing in common: Scupin 1984: 136–7; Walker 1899: 51). An authentic state system was in place for these There were, in essence, two traditions of times and places. I take as my working ancient state practice (Bederman 2001b: 47, definition of a state system Professor Hedley 277–9). The feudal empires of the Near East Bull’s formulation in The Anarchical Society: created their special diplomatic argot, one that was transmitted (by contacts through the A society of states (or international society) Egyptians, Phoenicians, and Israelites) to the exists when a group of states, conscious of later political cultures of the Mediterranean certain common interests and common basin. The second heritage was produced by values, form a society in the sense that they the querulous relations of the Greek city states. conceive themselves to be bound by a Roman statecraft was a mixture of these two common set of rules in their relations to one another, and share in the working of com- manners. How these two traditions came to mon institutions. define the ancient conception of a law of (Bull 1977: 13) nations – through diplomacy, treaty making, and the initiation and conduct of hostilities Implicit in this definition is that political – will be discussed in the remainder of this entities are organized and think of them- chapter. What needs to be reiterated here is selves as states, and that it is possible to dis- that there were special times and places in cern “common interests and . . . values” in antiquity where political entities coalesced as deciding whether those states deal with each states and related with their like-constituted other on a “conscious” basis. Both inquiries – polities on the basis of independence, 117 9780415418768_4_007.qxd 26/11/2008 02:36PM Page 118

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sovereign equality, and a respect for rules in and even in the conduct of hostilities between the conduct of international relations. two warring nations. It is of note that the principle of private hospitality was quickly transformed into an essential feature of inter- Reception and protection of state relations. This transformation occurred diplomats and embassies in quite early. Friendship and diplomacy were antiquity always inextricably linked. Strong personal relationships undoubtedly facilitated diplomatic Fundamental to the idea of a law of nations contacts even between potentially belligerent in ancient times was the proper respect nations. In the fourteenth century bce, the and protection to be accorded to the ofﬁcial Hittite king was vexed because one of his representatives of other sovereigns. Two vassals, one Piyamaradu, was raiding his ter- ancient states might have been in a condition ritories. The Hittite king complained to a of distrust or competition, and yet diplomatic neighbor, the king of Ahhiyawa, whose pro- contacts were constantly promoted and rein- tection Piyamaradu had sought when milit- forced between them as long as they were not arily confronted by the Hittites. The Hittite actually at war. The principles of diplomatic king then asked the ruler of Ahhiyawa for intercourse were surely seen as rules to be Piyamaradu’s extradition. The bearer of this followed save in the most grievous breach. The message was a prominent individual well international law of diplomats and diplo- known to the king of Ahhiyawa. The historical matic protection was fundamental, because record indicates that the well-born messen- without it the simplest forms of negotiation ger had previously participated in diplomatic between independent polities would have been contacts between the houses of Hatti and impossible. The rules of diplomatic conduct Ahhiyawa. The selection of this envoy was were, therefore, motivated by the highest apparently critical to the Ahhiyawa king’s demands of necessity. favorable consideration of the Hittite request: Each of the ancient cultures surveyed in this Piyamaradu was bound over to the Hatti. chapter held strong notions of hospitality This, in spite of the fact that Piyamaradu was and the proper courtesies and facilities to be owed hospitality by his host. The selected extended to strangers from afar. In a world envoy was privileged in his functions pre- of imperfect and dangerous communications cisely because of the bond of friendship and and means of transport, where even modest hospitality that had been formed (Audinet distances posed incredible obstacles and dif- 1914: 33; Hooker 1976: 124; Karavites ﬁculties for travelers, hospitality was more than 1987: 85). Likewise, Livy relates the incident a merely desirable institution of personal where ambassadors were dispatched by King favor. Rather, in each of the state systems con- Perseus of Macedon to Rome in 171 bce. This sidered here, hospitality was sanctioned and was apparently a delicate mission, and the only ritualized. It undoubtedly possessed a private reason Perseus felt comfortable enough to send aspect: one family or household extending hos- the embassy was that a bond of private hospitality to a traveler from abroad (Bederman pitality existed between him and one of the 2001b: 88–95). Of concern here is how current consuls in Rome, Marcius, a tie that beliefs regarding private hospitality became had been formed between their fathers (Livy institutionalized and ritualized into patterns of 12: 405 (passage xlii.38)). state practice. These examples of “personal diplomacy” There were enormous implications of are hardly surprising. The concept of private the ancient institution of hospitality: In the hospitality and friendship, extended between treatment of aliens living abroad, in the individuals of different nationalities, surely peaceful settlement of certain kinds of dispute, acted as a critical facilitation of diplomacy. Even 118 9780415418768_4_007.qxd 26/11/2008 02:36PM Page 119

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more significant was the manner in which the 1970). Envoys who violated their own bona hereditary aspect of private hospitality was fides were subjected, under Roman law, to transmuted into the concept of perpetual peace noxal surrender to an enemy (Rich 1976: 109). between sovereigns. As seen in the examples Other examples abound of personal coercion of Roman and Hittite practice, the initiation being applied against the official represent- of diplomatic relations acted, in effect, as the atives of foreign states, all for the purpose of formation of a bond of public friendship preventing deception or trickery in the pro- between two states. This fiction was prob- cess of international relations. ably intended as an antidote to the religious The ancient reconciliation of diplomatic particularism of many ancient nation states. immunity with sanctioned retribution is one The very act of receiving a foreign nation’s of the paradoxes of ancient international ambassadors was seen as an acceptance of relations. Suffice it to say here, however, that an alien religion and its national gods. The such duress rarely achieved much success. One concept of perpetual peace was seen as a very example is enough. In the winter of 478 bce, public form of ritualized hospitality between Athens began rebuilding the city’s fortifica- two nations (Paradisi 1951: 346). tions destroyed in the earlier Persian invasion. The analogue between the forms and func- Athens’ neighbors fretted about this devel- tions of private hospitality (on the one hand) opment, and sought Spartan help to dissuade and official diplomacy (on the other) was the Athenians from what might have been per- imperfect and certainly had its limits. Inter- ceived as an aggressive move. The Athenians national diplomacy could not have proceeded needed to buy some time, pending the com- on the same basis, with the same assumptions pletion of their works. This they accomplished of human nature, as the laws of private hos- with a diplomatic stratagem. Athens dis- pitality and comradeship. There was simply patched to Sparta one Themistocles, a lead- too much at stake. The fortunes of nations ing citizen, but extraordinarily well regarded could be risked on a diplomatic interchange and well trusted by the Spartans. He assured or negotiation. Envoys could be feckless. the Lacedaemonians that no such aggression Or, worse still, they could take advantage of was intended and allayed their fears of a the rules of hospitality to deceive a host. So new round of Athenian imperial expan- ancient peoples had an alternative to seeing sion. Reports of continued building on the rules of diplomatic conduct as the exten- the walls found their way back to Sparta. sion of the dictates of private hospitality. Themistocles assured his Spartan hosts that the This choice was reflected in their substantial accounts should not be believed, and that, concern in establishing the trustworthiness instead, a high-level Spartan delegation be of diplomatic personnel. The Greeks were sent to Athens to investigate in person. preoccupied with this. Many Greek cities But Themistocles had secretly arranged that established laws to punish envoys found when that Spartan embassy arrived in Athens guilty of distortions or fabrications in the course it would be detained to act as security for his of their official acts (Mosley 1973: 94–5). own safety, once his own fraud was dis- One technique for assuring the integrity covered, which it inevitably was. Thucydides of visiting envoys was to hold them person- reported that since the eminent Spartans ally liable for their transgressions or those were in the hands of the Athenians, the of their masters. This seemingly conflicted Lacedaemonian authorities had no choice with every civilized principle of diplomatic but to accept Athens’ fait accompli and immunity, and yet it was not really viewed release Themistocles (Thucydides 1: 149 as a contradictory practice by ancient peoples. (passage i.89–92)). Diplomats were often held as privileged sorts This story says much about the mutual ex- of hostages, particularly in Greece (Amit pectations of diplomatic relations by ancient 119 9780415418768_4_007.qxd 26/11/2008 02:36PM Page 120

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states. Some level of trickery and dishonesty political independence. The Romans were was acceptable, perhaps even required. What particular sticklers on this point: They would is noteworthy, however, is the extent to which not receive ambassadors from a less than free the rules of diplomacy were so widely and autonomous political entity. This was observed. Because the international law of codified in later Roman law, but even in the diplomacy was inextricably linked with each time of Roman transmarine expansion, as of the authentic state systems considered in Polybius recorded, Roman authorities would this contribution, a polity’s acceptance of dip- not receive embassies from defeated peoples lomatic niceties was often considered a sine ( Justinian Digest 4: 920 (passage 50.7); qua non for its participation in the inter- Polybius 4: 97 (passage ix.42)). In short, the national system of state relations. There were privileges and immunities of diplomats came a few, basic rules of diplomatic intercourse: as part and parcel of the right of legation. (1) foreign envoys would be treated as guests, It made sense surely to regard those diplo- and that (2) although tolerable levels of per- matic practices as an essential part of a system sonal coercion were permitted, the diplomats of states. Envoys, as already noted, were would otherwise be immune from sanctions seen as the personification of the sending state. in the host state. These basic rules were Any offense to an ambassador was an offense respected by nearly all of the states existing against a coequal sovereign. It was also within the three time periods of international possible to see the entire system of diplomatic relations pondered here. The content of the privileges and immunities as an outgrowth of rules was, moreover, remarkably consistent the recognition that certain classes of entitled throughout the entirety of antiquity and individuals were subject only to their own throughout the ancient world (Bederman sovereign’s authority, even when they tra- 2001b: 95–135). The universality of diplomatic veled into the territorial realm of another ruler. law was a signal feature of its success. Diplomatic privileges, as an outgrowth of A consistent theme of historic narratives extraterritorial immunities, were a very real from antiquity is the extent to which even way that political entities avoided conflict. peoples and states on the periphery of “civ- Taken together, the general principles that ilization” still followed the dictates of diplo- guided the ancient practice of diplomatic matic practice. So it was that Polybius could law had a profound impact on the manner in express surprise that the mercenary leaders which envoys operated and the extent to of Libyan tribes observed all of the correct which they were protected. Ritualized hos- rituals (at least by Greco-Roman standards) pitality was balanced carefully with concerns in their relations with the Carthaginians in 238 over the probity of an envoy and that of his bce (Polybius 1: 229–31 (passage i.85)). In the master. The universality of rules of diplomatic same vein, the historical evidence is strong that comportment was qualified by the principle Persia conformed its international conduct that only legitimate states had the right to and behavior to Greek diplomatic standards, send and receive embassies. Despite these even as Persian kings attempted to conquer contradictions, the overall picture of the Greece in the fifth century bce (Bauslaugh international law of diplomacy in antiquity 1991: 38–43, 91; Mosley 1973: 164–5). was remarkably stable and predictable. That leads me to consider the last general concept that motivated the development of the ancient practice and organization of Treaty practices among ancient diplomacy. This was the notion of sovereign peoples equality. The power to dispatch and receive ambassadors, the right of legation, was Enforcement was always a difficult issue of typically seen as an incident of power and making faith in antiquity. For early Near 120 9780415418768_4_007.qxd 26/11/2008 02:36PM Page 121

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Eastern polities there were consistent concerns Mosley 1975: 191–98, 221–25; Amit 1970; about crafting treaty terms that were truly Ténékidès 1956; Wheeler 1984). The Greek reciprocal and recognized as equally binding approach to treaties was, in a very real sense, on both sets of parties. For these cultures, a legal one. the act of treaty making was viewed as a The Romans conceived treaties in a legal unilateral act: the sovereign of one nation sense of obligation as well, but their vision pledged his troth on the assumption (al- was formalistic. The elaborate charade of though without the certainty) that the treaty noxal surrender following a repudiated partner was doing the same (Numelin 1950: sponsio was emblematic of (largely) empty 293; Théodoridès 1975: 105–107). The Roman legal forms. It also says much about idea that treaty making was an inherently Roman (and, for that matter, ancient Near reciprocal exercise – indeed, that it had no Eastern) ambivalence about observing inter- meaning otherwise – appeared only later in national obligations for the simple reason that the ancient Near Eastern tradition, with the they reflect a rational exchange of promises covenant between Rameses II and Hattusili and an expectation of subsequent certainty in III being exemplary (Kastemont 1974: 47, 438– political and diplomatic relations (Bickerman 9; Langdon and Gardiner 1920: 188–98). 1952). Once the notion of reciprocity was There may well be a correlation between embraced by ancient cultures, they could then the character of the state system in which confront the problem of internal and exter- diplomacy (and treaty making) is being nal means of treaty enforcement. There was conducted and the preferred mode of treaty a dynamic tension between these two appro- enforcement. “Dynamic” state systems (those aches. An “internal” way of enforcing an with more than five major actors) may international agreement emphasized back- well have resorted to more “internal” means ground rules of good faith, reasonable inter- of enforcement. Greek multipolarism was pretation, and faithful observance over time. exemplary of this. Alliances were extra- “External” means implicated personal surety ordinarily fluid in these state systems, and so and responsibility in the enforcement of “external” (and usually more coercive) means treaty values. These included hostage taking of enforcement were likely not to have been and noxal surrenders. employed with substantial success. The more Every ancient culture surveyed in this “static” state systems that prevailed during chapter vigorously debated the question of much of the ancient Near East and the how to coerce treaty faith. This argument was period of Roman expansion, having (typically) typically conducted in the form of a disquisi- less than four or five great powers, were tion of the morality (or at least the political more brittle. Treaties seemed to matter for wisdom) of accepting hostages as treaty less, were drafted at a higher level of abstrac- guarantors. And, indeed, while commentators tion, and, yet, ironically, were more often condemned the practice, it was followed enforced by coercive, “external” means, with more or less regularity by every state including hostage taking and personal system reviewed here, with the notable pledges of surety. exception of the Greek city states. Even the Problematic enforcement of international Romans, despite their strong sense of bona agreements did not seem, however, to inter- fides in treaty observance, took hostages. The fere with the process of developing legal Greeks sought, instead, to put their reliance sophistication. A signal aspect of every state in a whole panoply of structural solutions system reviewed here is that, as time went on, to ensure treaty fidelity: anti-deceit clauses, treaties became more diverse in the subject rules of treaty interpretation, and refined matters of substantive provisions, more pre- doctrines of treaty termination (Adcock and cise in the structuring of those clauses, and 121 9780415418768_4_007.qxd 26/11/2008 02:36PM Page 122

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(generally) more complex in the interrelation oaths, was adopted (with some changes) of these obligations. Treaties like the 1280 bce by the Assyrians, Egyptians, and ancient instrument between Egypt and the Hittites, Israelites. It was, in turn, transmitted into the or the 215 bce agreement between Hannibal Greek and Hellenistic worlds, and thence into and Macedon, are models both of complex- the western Mediterranean region of Rome ity and precision (Bickerman 1952; Langdon and her neighbors. The proof lies in those and Gardiner 1920). agreements made by nations at the temporal Both were treaties of alliance and friend- and spatial intersections of these different state ship, capturing all the ambiguity and difficulty systems – such as that between Rameses II that those relationships entailed for the two and Hattusili, or that between Macedon and treaty partners. Every legal culture considered Carthage, or that between Rome and the in this article had to confront the issue of Aetolians (Bickerman 1952; Langdon and how to narrate and control diverse kinds of Gardiner 1920; Matthaei 1907: 189; Paradisi alliance statuses between two or more polit- 1951: 345–6). In each of these instances, ies. Sovereign equality was always problem- pre-existing forms were (to be sure) altered. atic, and although Greek alliance typology It may have been the dropping of elaborate was certainly the most nuanced in antiquity, preambular passages, or the inclusion of Roman conceptions of different kinds of specific legal terms or provisions (such as affiliations were complex, and so too were maiestas clauses or qualifications regarding Hittite and Assyrian treaty forms (Adcock and after-acquired allies). Regardless, there was Mosley 1975: 191–93; Boak 1921; Larsen always a synthesis of forms and motifs of 1968; Martin 1940: 371–72; Matthaei 1907; legal expression in treaties, never an outright McCarthy 1963; Mendenhall 1955; Paradisi repudiation of old forms. 1951: 345–50). Alliance configurations cul- As developed in the ancient Near East, minated in extraordinarily complicated league treaties narrated a story of relations between patterns. two or more states, and purported to tell also The most convincing evidence that ancient a story of their peaceful relations for all time peoples conceived of international links as to come. Although the elaborate preambular legal relations was that they committed their statements used by the Hittites were not treaties to writing. The power of the written replicated even in all ancient Near Eastern word was not to be underestimated in anti- texts – and certainly not in Roman, Greek quity. The emphasis – one might say the obses- or Egyptian instruments – there was still a sion – of ancient states in properly keeping strong element of historic narration and and revering treaty texts was symbolic of the structure to these later treaties. All political power and authority of the written word cultures reviewed here had to struggle with to convey legal meanings for international the fundamental dilemma of state relations: relations (Adcock and Mosley 1975: 177–8; did the conclusion of treaties necessarily Karavites and Wren 1992: 188–9). mean that relations with another polity Ancient treaty making also had a strong could be based on the notion of perpetual universalist flavor. By this, I mean two peace? distinct things. The first is that there was a There seems no doubt that ancient single ancient tradition in treaty making, peoples regarded treaties as the chief means an inherent unity of conception in the of regulating peaceful relations between way that treaties were made and observed. states. The institutions of private hospitality There were, of course, some variations in and the public reception of emissaries could these forms, but what is surprising is the assist in this process, but, ultimately, it was up commonality. The basic Hittite treaty form, to states to pledge their faith to each other. a secular contract formed out of solemnized This act of making faith could have many 122 9780415418768_4_007.qxd 26/11/2008 02:36PM Page 123

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forms. It could have been a simple recogni- and towns besieged, for sure, but the struction of friendship existing between nations. ture of ancient warfare was such that a cam- Or it could be a conclusion of some sort of paign could end very easily with a decisive political alliance. Greek and Roman statecraft engagement or a stormed city. Civilians were understood a distinction between philia and usually left alone, if for no other reason that symmachia, amicitia and foeda; they also knew if armies killed peasants and burned fields, that the alternative to peace was a state of war soldiers would probably starve before the or enmity (Karavites 1982; Scupin 1984: inhabitants of the district did. Total war was 137–8). virtually unheard of. The Israelite doctrine of mitzva notwithstanding, and the dramatic, life- and-death struggles of the Peloponnesian and Commencement and conduct of second Punic wars, the very process of war hostilities in ancient times in antiquity succeeded in limiting its effects (Rosenne 1958: 139). The ancient preoccupation with war focused Ancient wars were fought for territory – on applying rationality to a fundamentally and for glory. Most ancient states were irrational endeavor. The goal was nothing less socially organized on a footing that facilitated than managing conflict. To the extent that the marshaling of resources for armed con- ancient societies developed religious, ritual, flict. These resources were finite. Blood and rational strictures on declaring war and and treasure came in limited supplies. The initiating hostilities, there must have been some Israelites, the Greeks, and the Romans all came manifest belief that war was an exception to to understand that war depleted social and the normal course of international relations, economic capital so quickly that the very an aberration in the way that peoples dealt with integrity of the state was jeopardized. All each other. ancient belligerents had an incentive, there- The nearly universal conscience of peoples fore, to make war quick and cheap. Warring in antiquity was that it was never desirable nations feared defeat, but they trembled to be branded the aggressor in a conflict more in the face of ataphos, the death of the (Adcock and Mosley 1975: 202–203). There human spirit that the conditions of war pro- was a moral advantage to be won in exercis- duced. In antiquity, war was, at one and the ing restraint before entering a condition of same time, the great legitimizer of the state, belligerency, or at least in appearing to do so. and its greatest threat (Bederman 2001b: It was this fact that led to the development 208–27). of rules for neutrality, which depended for their To respond to the challenges that war vitality on a status being given to those poli- presented to the state, religion and ritual and ties that chose to abstain from conflict. And reason were called on to sanction and give if the regime of neutrality was never widely, order to life in belligerency. These mixed and or absolutely, recognized, it was an epitome produced a distinctively legal vision of how of a legal status used in ancient state relations ancient states initiated hostilities and how they (Bauslaugh 1991). conducted them. The mechanism by which As for rules governing the conduct and religious values were transformed into rituals prosecution of hostilities, one might wonder and thence into legal rules was achieved in whether there was even a need to actually two different ways, both hastened by war itself. manage ancient warfare. Ancient conflict The first was in the creation of distinctive social was usually a desultory affair, synchronized institutions, whether sacerdotal colleges like with the turn of the seasons, limited by great the Roman fetials or the Israelite high priests distances, imperfect communications, and (Harris 1974: 269; Saulnier 1980; Watson difficult logistics. There were battles fought 1993; Wiedemann 1987). Religious values, 123 9780415418768_4_007.qxd 26/11/2008 02:36PM Page 124

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often expressed in virulently nationalist Greek to dikaion and the Roman ius ad forms, were maintained and applied by these bellum and ius in bello had actual, substantive institutions. Their primary goal was to pre- content. In part this can be seen in the many serve the legitimacy of the state against both dualities that were part of the ancient law internal and external challenge. These institu- of war. Ancient states made a distinction tions kept the mysteries of the state religion between enemies and foes (Schwab 1987: and carried on a discourse with the national 194–5). This was the central concept of gods concerning the state’s place in the restraint and proportionality in conflict. world (Bederman 2001b: 59–79). The key ele- Without the idea that public wars had to be ments in the legitimacy of these institutions treated differently than private feuds, there were the rituals they managed on behalf of could be no rule of law in wartime, since the state and its people. The second mech- conflict presumably dissolved all bonds of anism was simply the process of secularism. hospitality. Religion and ritual, after time, could not Ancient states also saw a difference succeed in sustaining state values or legitimacy. between just and unjust, lawful and unlaw- The ancient Israelite notion of mitzva, as ful wars. Sometimes this was a matter only a command for divine, obligatory war, gave of internal, scriptural significance (as in the way to a rational notion of “optional” war Israelite contrast of mitzva and reshut), but (Holloday and Goodman 1986). The spear- it also could extend to broader notions of throwing ritual of the fetials, as the dramatic justification. Lastly, all ancient states saw the bellum indicere, was modified as time and inter- need for limitations and immunities to be national conditions changed (Harris 1974: impressed on the conduct of warfare. These 267–9; Rich 1976: 103–104; Wiedemann were the most specific, and literal, of the norms 1987: 481). It was replaced by the language governing armed conflict. And although and rhetoric of law and legal rules of obliga- there were only a handful of rules of conduct tion (Bederman 2001b: 79–85). Halachic in warfare, these were generally observed and (legal) thinking influenced and moderated respected, to a degree that was startling for the Israelite approach to war. The Greeks, a time that was supposed to be barbaric and strongly disposed to philosophy and rhetoric lawless (Bederman 2001b: 242–63). already, consistently referred to the norms Whether there was a law of war in anti- of conduct in warfare as a common law of quity is the ultimate test of whether there was mankind. After all, the final, winning argu- a cohesive idea of a law of nations at all in ment of the Thebans was that they had ancient times. I have argued here that there “suffered contrary to law” because of the indeed was a common core of ideas leading Plataeans’ previous violations of those customs to the exercise of restraint by ancient states (Thucydides 2: 117–19 (passage iii.66)). The in armed conflict. As with all of the themes Romans, from their earliest period of organ- considered in this contribution, the sources ized political history, claimed legal right as the of legal obligation in ancient state relations basis for their moral and military superiority. were multivalent, and this is nowhere more Remember the words of the Roman pater evident than in the ancient law of war. patratus, head of the college of fetials, when he remonstrated against the enemy that had failed to do right? “Let the law of heaven Conclusion hear,” the enemy, he said, was “unjust, and does not act agreeably to law” (Livy 1: 115–17 The norms of international law thus had (passage i.32.6–10)). the same purpose throughout antiquity: to It was not just that ancient peoples uttered promote predictability and stability, to ade- a sense of legal obligation in warfare. The quately channel state conduct in ways that were 124 9780415418768_4_007.qxd 26/11/2008 02:36PM Page 125

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conducive to maintaining power relations, today’s global world order, and they may not and to nourish the internal legitimacy and have much to instruct as to the substantive sovereignty of polities. Despite my occasional content of essential doctrines of international use of the term “international law” in this law, but the history narrated here has sub- chapter, the ancient law of nations was con- stantial bearing on the creation of legal com- ceived only as an instrument of state relations. munities which aspire to universality. It had virtually no regard for other values such as human rights or dignity, the protection [Author note: This chapter is based on of common resources, or the advancement portions of the author’s previous volume, of some exogenous ideology or philosophy. International Law in Antiquity (Cambridge The law of nations in antiquity was, first University Press. 2001b).] and foremost, an expression of the ancient mind’s desire for order. To achieve international society meant Notes that a delicate balance had to be struck with the internal, political and religious order of 1“bce” means “before the Christian era.” individual states. This was the singular task 2 For general treatises, see, e.g. Chacko, “India’s of the law of nations in antiquity, one that contribution to the field of international law concepts”, 93 Recueil des Cours de l’Académie it accomplished to a surprisingly effective de Droit International [RCADI] 117 (1958–I); degree. Ancient states were particularistic. Hiralal Chatterjee, International Law and Inter-State Their internal political order depended on Relations in Ancient India (1958); Nagendra exclusion, on aggression, and on difference Singh, “History of the law of nations – regional (Bederman 2001b: 59–61). The rules of state developments: south and south-east Asia”, in 7 Encyclopedia of Public International Law 237 relations in ancient times managed to trans- (Rudolph Bernhardt ed. 1984); Nagendra form this particularism into cooperation. Singh, India and International Law (1969). Friendship was achieved through the transla- 3 See, e.g. Britton, “Chinese interstate intercourse tion of hospitality practices into the institu- before 700 B.C.”, 29 American Journal of tions of diplomacy. Likewise, the ancient state International Law [AJIL] 616 (1935); Shih-Tsai Chen, “The equality of states in ancient was made tolerant by rules of conduct which China”, 35 AJIL 641 (1941); Frederick Tse- permitted the movement of people, goods, and Shyang Chen, “The Confucian view of world services across boundaries. Trust was made order”, in The Influence of Religion on the possible through the rituals and forms of Development of International Law 31 (Mark W. Janis making faith through treaties and alliances. ed. 1991); Iriye, “The principles of international law in view of Confucian doctrine”, Finally, restraint came to be exercised by 120 RCADI 1 (1967–I); Shigeki Miyazaki, ancient states even in wartime as a consequence “History of the law of nations – regional devel- of self-interest and concern for order. opments: Far East”, in 7 Encyclopedia of Public We do not speak of these values today International Law 215 (Rudolph Bernhardt in modern international law. Perhaps we ed. 1984). 4 For much the same reasons, I also excluded should. These are the essential ingredients of considerations of African state systems and community, a notion and principle that is the international relations of the Byzantine at the theoretical center of the modern law Empire. For more on these, see T. O. Elias, of nations. This contribution has, in large “History of the law of nations – regional devel- measure, been the story of the creation of opments: Africa”, in 7 Encyclopedia of Public International law 205 (Rudolph Bernhardt ed. a nascent community, one with a political 1984); Stephen Verosta, “International law in structure and legal sensibility. Ancient state Europe and western Asia between 100 and systems may have little to teach us about 650 A.D.”, 113 RCADI 484 (1964–III).

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8 The age of Grotius

Edward Keene

This chapter is organised around two themes. First, cerned with two related questions: How did it examines the changing discourse of international the conceptual and doctrinal apparatus of the legal thought during the sixteenth, seventeenth and law of nations, linked to fields such as civil eighteenth centuries. After a brief summary of the law, canon law, natural law, and public law, traditional narrative of the emergence of Grotian evolve during the period? And how did doctrines within the context of the “Westphalian expert practitioners of the law of nations apply system”, particular attention is paid to the ways these doctrines in the course of activities such in which more recent scholarship has opened up as the adjudication of disputes, diplomacy and new chronological, geographical and philosophical treaty making? The former question has tradi- perspectives on the transition from medieval to tionally occupied the bulk of the attention modern doctrines. The second theme concerns the of legal historians, especially in the English- comparatively neglected issue of the evolution of speaking world. Over the last 150 years or so the international legal profession. Changes in (Wheaton 1845 is one of the first sustained legal education are discussed here, especially the treatments), a very large, and still growing, impact of new humanist approaches and the grow- literature has accumulated on the changes and ing focus on training in national institutes of law continuities in international legal thought rather than the medieval ius commune. In this from the late medieval civilians and canon- context, the chapter also discusses the professional ists, such as Bartolus of Sassoferrato or Pope roles that lawyers played in aspects of the con- Innocent IV; through the sixteenth-century duct of international relations such as diplomacy. scholastics, such as Francisco de Vitoria; and The changing requirements of the latter help to the later theories of natural law that were explain the emergence of a new genre of legal influenced by the “new learning” of the scholarship devoted to the historical analysis of humanist movement as well as the Spanish treaties, which profoundly influenced the develop- scholastic tradition, advanced by northern ment of positivist doctrines towards the end of the European scholars such as Hugo Grotius; to eighteenth century. the positivist systems of European public law produced by eighteenth-century authorities The purpose of this chapter is to describe how such as Georg Friedrich von Martens. By con- international law changed during the sixteenth, trast, although the historical development seventeenth and eighteenth centuries. It is con- of the practice of international law has by no 126 9780415418768_4_008.qxd 26/11/2008 02:36PM Page 127

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means been entirely neglected (Durchhardt example – who wrote the authoritative 2004; Grewe 2000; Lesaffer 2004; and treatises that are said to have laid down the Roelofsen 1989 are a few recent examples), foundations of the international legal order that the literature here is comparatively slight. underpinned the Westphalian system. But that There are two reasons for this discrepancy. leaves unclear the transmission mechanism In the first place, it reflects a wider tendency through which their doctrines were cap- in historical scholarship to focus on the able of influencing international affairs. To evolution of disciplinary systems of thought know how books affect the way people live, rather than the activities of practitioners. one cannot just read the books; one must As William J. Bouwsma remarked, we have also understand the readers. In this case, that plenty of “histories of law – indeed great means understanding the dispositions of classics on this formidable subject – but very trained legal practitioners involved in inter- little on lawyers as a profession characterized national affairs, without whom Grotius by a certain social role and a particular per- would have had many fewer readers, rulers spective on life and the world” (Bouwsma would have lacked a vital source of expert 1973: 304). That complaint is now over 30 assistance with which to conduct their rela- years old: Bouwsma acknowledged that it tions with one another and the Westphalian was already beginning to be addressed when system would quite possibly have ceased to he wrote (for instance, Martines 1968), and function as a normatively regulated order. it has since to a considerable degree been None of this is to say that theoretical tre- answered by more recent scholarship atises on the law of nations do not matter. (Brundage 2004; Karpik 1999; Prest 1981, On the contrary, one cannot understand how 1986). Nevertheless, most of these studies international law was practised in the early have dealt with the evolution of national modern period, or how and why its practice professions, perhaps because they have a was changing, without an appreciation of much tighter and more readily identifiable the doctrines advanced by authorities such structure, and have touched only marginally as Grotius; apart from anything else, they on the education, careers and other charac- were an essential part of the education of teristics of practitioners who concentrated on practitioners and were commonly referred to handling international disputes. in concrete disputes. But just as one cannot The second reason is that there is a tend- understand the practice without the theory, ency in the study of international law, and so it is difficult to understand the theory international relations more generally, to in isolation from the practice. With a few think of the historian’s primary task in terms exceptions – Christian von Wolff, for ex- of illuminating the legal, political and moral ample, who spent his entire career as a principles that played some kind of role – often professor of mathematics and philosophy at poorly defined as to exactly how – in shap- the universities of Halle and Marburg (and ing the normative structure of the international whose work was, perhaps not coincidentally, system or international society at large: the notorious for its abstractness and impene- so-called “Westphalian system”. The focus, trability) – most of the people who wrote in other words, is on the structure of the “inter- prominent works on the theory of the law of national legal order” rather than the agents who nations were also themselves practitioners. made that order a reality by consistently Grotius, Pufendorf, Emerich de Vattel and applying legal rules to the everyday conduct Martens all served as diplomats at some point of relations between princes and states. Where in their careers, although not always with agents do make an appearance, it is often distinction. Many managed to build impres- only in the form of a handful of almost hero- sive professional careers in addition to their ically great jurists – Grotius is the obvious scholarly accomplishments: Cornelis van 127 9780415418768_4_008.qxd 26/11/2008 02:36PM Page 128

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Bynkershoek, for example, wrote his cele- chronological, geographical and philo- brated doctrinal treatises on the law of the sea, sophical contexts within which the evolu- rights of ambassadors and public inter- tion of modern international law may be national law while serving as the President understood. of the Supreme Court of Holland, Zeeland In the second part of the chapter, we will and West Friesland (see Ittersum 2006 on turn to the issue of how international law was Grotius’ professional activities and their practised, and especially how the community, importance for understanding his scholarship; if we may use that possibly exaggerated term, see Akashi 1998 for a similar perspective of practitioners of the law of nations changed on Bynkershoek). That is to say, they had during the early modern period with respect received the kind of training that was com- to how its members were trained and the mon for law students at the time; where kinds of activities in which they were typic- available they often possessed appropriate ally engaged. There are two main points to credentials or memberships of professional the argument here. First, legal education, groups; and they engaged in practical activit- including the teaching of the law of nations, ies such as representing and advising clients underwent a transformation during the six- or serving on diplomatic missions. One of the teenth and seventeenth centuries that is only contexts within which their texts may be partially explained by the process of state read – although not the only context within formation that occupies such a central place which they can be read – is therefore how in the standard history of the origins of these occupational characteristics of practi- the modern international legal order. The tioners of international law were being emergence of sovereign states certainly was reshaped during the late medieval and early important here, but so were educational modern periods. reforms introduced by religious reformers We will begin by trying to sketch in and (especially) humanists, which reshaped broad outline the changing conceptual and the curricula of law schools and patterns of doctrinal apparatus of the early modern law student mobility, and help us to understand of nations. We will not look in detail at the some of the driving forces behind the doc- works of individual authors (Nussbaum 1947 trinal innovations of the seventeenth century. is still a very useful study in that respect, as is Second, how qualified experts on the law Grewe 2000) and, because there is such an of nations practised their profession also extensive literature on this topic, the discus- changed. One reason was the restructuring of sion is to a large degree a survey of existing the system of courts in Europe as states sought work, with a particular focus on points of to control and rationalise their national juris- current controversy and debate. We will start dictions, but we will concentrate more on by briefly describing what might be called the changing nature of European diplomacy the standard or textbook account of the during the seventeenth and eighteenth origins of modern international law that was centuries, and in particular the tendency to originally constructed by nineteenth-century recruit diplomats not from the legal profes- legal historians, such as Henry Wheaton. sion but from the nobility and the military. Their account places Grotius at the centre of Some training in international law was still the story and depicts his work as a response generally regarded as necessary for a diplomat, to the fragmentation of Christendom into but rather than formal legal qualifications, a system of independent sovereign states. still less a doctorate in law, candidates were We will then look at some of the major increasingly expected to have a grasp of the lines of criticism of this interpretive scheme history of treaties: during the early eighteenth that have developed over the last 70 or so century a number of collections of treaties were years, concentrating on questions about the published to serve this need, which provided 128 9780415418768_4_008.qxd 26/11/2008 02:36PM Page 129

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a crucial part of the background against various European states, statistical surveys which positivist theories of international law of the European political system, works on developed. modern history, and collections of treaties. Why did these changes happen? For well over 100 years, the most popular answer to The changing discourse of the that question has been that it was a response early modern law of nations to the transformation of the European political system, above all, the decline of the con- Compare a famous text from near the begin- fessional and imperial unity of Christendom ning of our period, Vitoria’s De Indis and and the consequent fragmentation of western De Iure Belli (originally delivered as lectures Europe into a system of independent, mutu- in the 1530s, and first published in 1557: see ally recognising but also mutually hostile, Vitoria 1917), with an equally celebrated one sovereign states, divided by religious and from near the end, Martens’ Precis du Droit political differences. Add into the mixture the des Gens Moderne de l’Europe (first published influence of the more aggressive, competitive in 1788: for the first English edition, see form of statecraft proposed by theorists of “rea- Martens 1795). They are different in numer- son of state”, and one is left with a recipe for ous ways: in the philosophy with which they what the nineteenth-century international approach the study of international law, in the lawyer Thomas Lawrence described as a method according to which they determine “tendency to utter lawlessness in international the content of international legal rules, in the affairs” in the late sixteenth and seventeenth sources they use, in the political environment centuries (Lawrence 1885: 173). War on an and audience towards which their arguments unprecedented scale, and of an unimagined are addressed, and in numerous smaller, but brutality, was the result. In order to keep the by no means trivial, linguistic, conceptual notion of an effective law of nations alive, and stylistic details. Vitoria saw the study of jurists were forced, so the argument goes, to the law of nations primarily as a branch of the rethink their ideas about the sources of inter- study of natural law, thereby associating his national legal obligation, moving in the pro- enquiry with a glorious and lengthy tradition cess from a theory of natural law as a code of scholarship; Martens dispensed with natu- inherent in the order of things and ordained ral law in a few paragraphs of deliberately faint by god, to a voluntarist or positivist doctrine praise, and described his positivist approach that made the consent of states into the key as a “science” that had been shamefully principle for the establishment of legal rules. neglected in the past. When Vitoria drew on International law was thus cut adrift from its concrete examples, his major point of refer- high purpose of promoting universal moral ence was the ancient world; Martens asserted principles and was converted into a mere tool that the world had changed so much that it in the hands of statesmen; but at least it was virtually worthless to study the ancients, survived as a real constraint on what those and that in most cases one did not have to statesmen thought they could legitimately do go back more than 100 or 150 years to know in the pursuit of their interests. The frequent what the law of nations was. Where Vitoria but limited wars of the eighteenth century appealed to faith and reason, understood are commonly proposed as evidence of both through the lenses of scripture, theology, the pliability and the strength of the early classical (mainly Aristotelian) philosophy and modern international legal order in the years canon or civil law, Martens looked to treaty before it was transformed yet again by the new and custom, drawing on genres of scholarship forces unleashed by the French Revolution. that barely existed, if at all, in Vitoria’s time: To look at this story a little more closely, studies of the constitutional law of the it really contains two distinct movements. The 129 9780415418768_4_008.qxd 26/11/2008 02:36PM Page 130

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first is the initial response to the collapse of arguments derived from a new way of think- the old order, which might be described as a ing about natural law. Grotius was often reformulation, rather than abandonment, of described by nineteenth and early twentieth- the classical doctrine that the ius gentium was century legal historians as an “eclectic” (for intimately linked to, and derived much of its example Hershey 1912), occupying a posi- force from, a law of nature, ius naturale. One tion in between either pure naturalism (for of the cardinal themes in the standard history which Pufendorf is the standard seventeenth- of the origins of modern international law century exemplar) or pure positivism is thus the elaboration of new conceptions (Richard Zouche and Bynkershoek are the of the law of nature, often relocated within principal examples here), and drawing freely a pre-Christian Stoic, or neo-Stoic, context on elements of both. This fits well with the of reason and passions (on neo-Stoicism in traditional idea of Grotius as the pivotal general, see Oestreich 1982): it is, in other thinker in the emergence of the modern law words, a law of nature grounded in an idea of nations, since it presents him as a kind of of human nature rather than a divinely bridge from the dominant naturalism of the ordained, and so ultimately supra-human, sixteenth century to the increasingly positivist code. This reconceptualisation of the natural outlook of the eighteenth, Wolff and Vattel law of nations in turn passes through several excepted. Gradually, the argument continues, moments: from Grotius’ assertion of a basic the naturalist elements of the Grotian system human instinct for sociability; through were jettisoned, allowing yet freer play to Pufendorf ’s adaptation of the bleaker its volitional or positivist dimension; scholars Hobbesian picture of the state of nature; such as Martens can then be seen as having to Wolff ’s and Vattel’s defence of the pos- developed this potential within Grotian sibility of a rationally grounded, Enlightened thought to its logical conclusion. (Although law of nature based on principles of freedom it might be noted that Martens himself does and equality, the rights of man transfigured not describe either his own project or its rela- into the rights of states. tionship to Grotius’ work in precisely these The second movement is away from terms, a point to which I will return at the natural law altogether, in the direction of a end of the chapter.) positivist jurisprudence standing alone as the The standard interpretation thus locates the foundation of the law of nations: a law made origins of modern international legal thought by the will of properly constituted sovereign firmly in the context of the “Westphalian authorities. The problem here lay not so much system” of sovereign states, and points to the with the medieval theologians but with the neat, albeit not quite perfect, synchronicity Romans who, it is often argued (see, for ex- between the publication of De Jure Belli ac Pacis ample, Lawrence 1885), had confused the in 1625 (see Grotius 1925) – the founding issue by muddling together ius gentium and ius text of modern international legal doctrine – naturale as two facets of a rational universal and the Peace of Westphalia in 1648 – the code, whereas, on the contrary, ius gentium founding act of the modern international was really only ever a special set of positive system. As such, it is still regularly endorsed rules developed by the Romans for the resolu- by textbooks today (for example, Cassese 2001: tion of disputes between foreigners (Kelly 19–21). Nevertheless, few legal historians 1992: 61–62). Grotius again plays a pivotal would accept it without reservations, and role in this part of the story, because he was at least three major critical themes have said to have admitted an unusually important developed in twentieth-century scholarship. role (by the standards of the sixteenth and early The first questions the way in which the seventeenth centuries) to volitional law as conventional story treats the mid-seventeenth a source of the law of nations, alongside his century as the decisive turning point in the 130 9780415418768_4_008.qxd 26/11/2008 02:36PM Page 131

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history of international legal thought, argu- national legal order such as the concept of ing that some of the most important elements sovereignty (Pennington 1993) and the prin- of modern ways of thinking were established ciple of pacta sunt servanda (Lesaffer 2000). well before the publication of De Jure Belli ac Moreover, rather than simply developing the Pacis. In its early form, this line of argument idea of a ius inter gentes, there was a crucial often turned into a debate about who, if not shift in canonist and scholastic thought in the Grotius, should be seen as the real “father” concept of ius itself that took jurists away from of modern international law. In the 1930s the idea of ius as an objective legal order, and James Brown Scott championed the claims towards the idea of ius as a subjective right, of Vitoria to that title, on the grounds that again paving the way for the characteristic he had developed a novel idea of “ius inter voluntarism of the modern perspective on the gentes” – law between nations – as opposed ius gentium as a system of the “natural rights” to the traditional notion of a ius gentium or of sovereign states, rather than a divinely law of nations, and thus had anticipated one ordained “natural law” operating above them of the hallmarks of the modern age, namely and oblivious to their wills (Bauer 2004; the idea of a legal code produced by the nations Tierney 1997; Tuck 1979). All these argu- themselves through their mutual intercourse, ments, by looking more closely at the spe- rather than standing above them as a facet cific ideas and terminologies employed by of the universal natural law (Scott 1934). the early modern jurists, point towards the fact Others have subsequently argued that Scott that the conceptual framework that made was mistaken to locate the origins of this way modern international law thinkable was of thinking in the Spanish scholasticism of largely created well before the early seven- the early sixteenth century – often doubting teenth century. The articulation of the basic whether Vitoria’s ius inter gentes can do all the concepts of the modern law of nations thus work Scott claims for it – and some scholars anticipated, rather than followed, the key polit- have pointed even further back to what they ical changes in the structure of the European claimed were similar conceptions developed system that brought Christendom crashing by fifteenth-century canon lawyers, such down in the wars of religion; we will not dwell as Paulus Vladimiri, and, earlier still, the here on the possible implications of this thirteenth-century Pope (and expert canon- for our understanding of the causal relation- ist) Innocent IV (Belch 1965 and Muldoon ship between ideational and material forces in 1972: the latter goes well beyond a focus on the revolutionary changes that transformed Innocent IV alone, and is by no means a naive international relations during the period. attempt to identify the “father” of modern A second criticism is that it is a mistake to international law, something one cannot so focus only on developments within European easily say for Belch, who often appears to be politics, as is implied by the way the textbook motivated as much by nationalistic pride in story is organised around the emergence Vladimiri as by other concerns). of the “Westphalian system” in western Since then, the debate about the chrono- Europe. Late medieval and early modern logical origins of modern international law has international lawyers were equally interested broadened out to embrace numerous other in the world beyond Europe, and many of aspects of the ways in which late medieval legal their arguments can be seen, and were some- thought, civilian as well as canonist, played times explicitly intended, as attempts to an important role in shaping modern ideas justify European colonialism and imperial- (Berman 1983 is an important study of this ism overseas. This overlaps with the first line theme in legal history in general; see also Post of argument discussed already, since one of 1964). Its influence has been detected in the the driving forces behind the focus on con- origins of vital elements of the modern inter- tinuities with late medieval canon law and 131 9780415418768_4_008.qxd 26/11/2008 02:36PM Page 132

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scholasticism was a recognition that interna- centuries (Alexandrowicz’s work is a very care- tional questions had been paramount concerns ful treatment of these issues; see also Jones for those scholars as well, so long as one looked 1982; Keene 2007; Mainville 2001). beyond the supposedly unified and internally Subsequent work in this vein has explored harmonious world of Christendom. For Scott, further the various ways in which the en- it was the encounter with the New World counter with non-European peoples shaped and the legal problems raised by the conquest emerging legal ideas about sovereignty and the that had led Vitoria to rethink earlier ideas of law of nations, often questioning the rather the law of nations, while subsequent revisions benign liberal interpretation that earlier to Scott’s argument were similarly informed historians such as Scott or Alexandrowicz by the awareness that such encounters had gave to the supposedly universalist spirit of the been going on well before 1492, whether with sixteenth-century law of nations. As Antony respect to dealings with Muslims in Spain Anghie points out, for example, while Vitoria and the Holy Land (Muldoon 1972) or championed the natural rights of Native with pagan and recently converted peoples Americans: “[H]is work could also be read in eastern Europe (Belch 1965). as a particularly insidious justification of their One of the pathbreaking works in conquest precisely because it is presented in understanding the importance of the extra- the language of liberality and even equality” European context to modern international (Anghie 2005: 28). Vitoria proclaimed a uni- legal thought was Charles Alexandrowicz’s versal and reciprocal system of rights, but Introduction to the History of the Law of Nations in so doing he legitimated a situation where in the East Indies, and his subsequent study of the practicalities of the Iberian–American the legal framework for European colonial- encounter ensured that the various parties ism in Africa (Alexandrowicz 1967, 1973). had different opportunities to exercise those Broadly speaking, Alexandrowicz was inter- rights, to the considerable disadvantage of the ested in how international legal doctrines Native Americans (as well as Anghie 2005, had permitted, or even assisted, the gradual see also Green and Dickason 1989; Pagden decline of Asian rulers from a position of rough 1995). Many other early modern jurists, parity with their European counterparts to most notably Grotius, were if anything even a much more subordinate role, in some more complicit in imperial activities, and their cases to the extent of their being denied accounts of the law of nations, while often international personality altogether. The substantially different from Vitoria’s, betray a sixteenth-century natural lawyers, to simplify similar talent for developing ideas about Alexandrowicz’s account somewhat, had sovereignty and property rights that were adopted a universalist worldview, within suspiciously useful for the needs of European which all peoples had equivalent rights; the imperialists and colonisers (Ittersum 2006; emerging positivism of the eighteenth and Keene 2002; Tully 1992 is an important study nineteenth centuries tore up the founda- of Locke’s political thought in this context). tions of those natural rights, leaving non- We will not explore the implications of this Europeans in a limbo that allowed European for our view of the morality of modern states to treat them as virtually non-existent international law, but merely observe that the for the purposes of colonial expansion conventional belief that the building of the (Lindley 1926 covers similar ground), but I modern international legal order was a pro- think this kind of argument is often over- ject purely concerned with re-establishing stated and it is important to acknowledge the peace and stability within western Europe significance of treaty making with non- is no longer tenable: modern international Europeans at least through the end of the lawyers have always had a global outlook; the eighteenth and into the early nineteenth management of relations between peoples with 132 9780415418768_4_008.qxd 26/11/2008 02:36PM Page 133

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radically different religions, cultures and to sceptical moral philosophies, which had political or economic systems, often through posed a major challenge to theological the- the application of discriminatory standards, ories of a divinely ordained universal moral has been a longstanding element of the law and legal code: the goal was not simply to of nations – or laws of nations – that they respond to raison d’état and the contempt for constructed. the law that it inspired, but to develop a new, The final critical theme involves the sceptic-proof moral reasoning (Tuck 1987, exploration of the wider intellectual connec- 1993). More recently, he has highlighted the tions between developments in international way in which both humanist and scholastic legal thought and other currents of change philosophers were beginning to create an in philosophy, whether natural, moral or idea of human beings as autonomous agents political. The standard account of the origins within an originally pre-social state of nature, of modern international law is not blind to a condition for which, Tuck argues, they found these contexts, but in general it tends to see a powerful analogue in the emerging world the works of thinkers such as Grotius as effec- of independent sovereign states (Tuck 1999). tively de novo responses to the political crisis As with Koskenniemi, the evolution of the created by the collapse of Christian unity and modern law of nations is thus interpreted as the pernicious influence of reason of state: they a crucial part of the development of modern were responding to new times by thinking liberal political and social thought, and the up new ideas, and, in the textbook narrative, one cannot properly be understood inde- the latter often appear to have been inspired pendently of the other. Parallel arguments have by nothing other than their functional or been made about connections to other early practical utility as solutions to the problem of modern fields of thought and scholarship, for lawlessness created by the failure of medieval example the relationship between the scientific institutions. revolution and legal postivism, which, we By contrast, following methodological might recall, was proudly hailed as a new innovations introduced by discursive or “science” by its advocates (Berkowitz 2005 linguistic approaches to the history of ideas attaches a particular emphasis to the import- (Foucault 1972; Pagden 1989; Pocock 1973; ance of Leibniz in this context). Skinner 2002), international legal thought may These are mere sketches of some of the be viewed in the context of an evolving major themes and controversies within discourse or language within which educated traditional and contemporary scholarship on persons thought about and acted on political the history of modern international legal and legal issues more generally. Martti thought. They show that the chronological, Koskenniemi, for example, invokes Michel geographical and philosophical contexts of Foucault in his interpretation of modern the early modern law of nations all remain international law’s voluntarism as a facet of issues of real debate beyond the orthodox the larger shift in political and social thought “Westphalian” version that still dominates most towards ascending and consensual theories textbook narratives. And that is not even to of legitimacy within the state (Koskenniemi go into the controversies that surround the 1989). Another argument of this nature, this interpretation of individual authors: there time with roots in Quentin Skinner’s adapta- is a small industry of specialized Grotius tions of linguistic philosophy to the history scholarship, for example, on which we have of ideas, has been made by Richard Tuck. hardly touched here. Nevertheless, having Building on his earlier analysis of the evolu- given this overview of the changes in inter- tion of natural rights theories, Tuck has national legal doctrine, and indicated some argued that international legal thought was proof the principal lines of argument through foundly influenced by the need to respond which historians have sought to explain why 133 9780415418768_4_008.qxd 26/11/2008 02:36PM Page 134

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international legal thought developed as it did, tially an informal association of advocates we now want to turn to the issue of how the that did not certify men for legal practice”, practice of international law was also chang- and, unlike the Inns, it did not undertake ing during this period. an educational role, which was left to the universities, where civil and canon law continued to occupy the bulk of the curriculum The changing practice of the (Levack 1981: 113). Moreover, the mere early modern law of nations fact that someone was a civilian lawyer or a member of Doctors’ Commons does not, of Many of the works on the changing discourse course, mean that he was involved in prac- of international law mentioned earlier con- tising international law, since ecclesiastical cern themselves, above all, with a handful disputes provided an alternative, and prob- of especially prominent jurists such as Vitoria ably more important, source of work. Thus, and Grotius. But, of course, this is merely the while the Inns offer an obvious starting point top layer, so to speak, of a much larger group and valuable repository of information for of experts on the law of nations who were any survey of the English legal profession in involved in applying legal doctrines to spe- general (as Prest 1986 demonstrates), it is harder cific cases and disputes and thus making a to locate equivalent data about the socio- law-governed international society a reality. logical profiles of those English lawyers who As we have said, if we are to understand how had a special interest in the law of nations. theoretical treatises such as De Indis, De Jure Although it is difficult to make generalisa- Belli ac Pacis or the Precis du Droit des Gens tions about the social or personal character- influenced the conduct of international affairs, istics of early modern international lawyers, we need to understand this wider commun- one can say more about the education or ity of practitioners of the law of nations: who training they would typically have received were they, how were they trained, and what at universities or other specialised academies, did they actually do when they were practis- and one can also make some observations ing international law? about the kinds of professional activity in These are very large questions, for some of which, having gained their qualifications, which, especially the sociological or proso- they would have engaged. In terms of legal pographical question about the composition education, the principal theme of the early of the international legal profession, more modern period is the fragmentation of research is needed before we can even begin what, by the late middle ages, had become a to canvass possible answers. The point is remarkably standardised curriculum organised further complicated by the fact that, during around the ius commune: a compound of the early modern period at least, practitioners Roman civil law and canon law, the former of the law of nations form a much less based on Justinian’s Corpus Iuris Civilis and the easily identifiable group than national legal latter on Gratian’s collection of papal canons, professions. Although England is perhaps the Decretum; with both having accreted a an extreme case, due to the strength of its large literature of glosses and interpretations indigenous common law tradition adminis- (Bellomo 1995). From the perspective of inter- tered through the Inns, the activities of civil national relations, the crucial feature of the and canon lawyers – from whose ranks ius commune was its continental scope: it was English practitioners of the law of nations were a common European discourse, overlying often drawn (Helmholz 2001: 5) – were much the often very different specific legal codes less closely regulated than their common within countries or cities, which made it law counterparts. Their principal organising possible for lawyers from different countries, body, Doctors’ Commons, “remained essen- and lawyers representing different princes or 134 9780415418768_4_008.qxd 26/11/2008 02:36PM Page 135

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foreign nationals in disputes at places such as not at all difficult to imagine a German the papal curia, to argue together about the student going to Paris to earn a doctorate in merits of their particular cases, and so hope canon law, before pursuing a career at the to achieve some sort of mutually intelligible, Roman curia, quite possibly in the employ of if not always mutually acceptable, judicial a prince from yet another country. resolution of their claims. On this basis, The late medieval law curriculum came numerous courts within Europe, for exam- under attack from two main sources during ple courts of chivalry, although organised on the sixteenth century. One was the Refor- a national or local basis, could presume to some mation, which was centred around an assault kind of international jurisdiction, on the on the whole apparatus of canon law: grounds that they were applying a law that Luther’s decisive break from the Catholic was essentially the same for all everywhere (on Church was heralded, we might recall, by his this aspect of the courts of chivalry, see Keen public burning of key canonist texts (Witte 1965; something similar may be said for 2002). This had important effects on the edu- mercantile courts, see Cutler 2003: 108–40). cation of lawyers by inspiring the foundation One of the most important elements that of new institutes of learning, by encouraging created and sustained the ius commune as a rulers of various confessions to control the European code was the nature of legal educa- teaching provided in “their” universities and tion. During the thirteenth and fourteenth by profoundly reshaping patterns of student centuries a highly internationalised legal mobility. Some universities, even relatively profession developed whose members were new ones, now became vital educational trained in the same ways, read the same text- institutions for the members of a particular books, and, as a result, practised the law in faith: for example, Leiden (where Grotius an essentially similar manner, irrespective of studied) “was indisputably the largest inter- the particular courts or cases in which they national centre for seventeenth-century were engaged. Bologna, Paris and Oxford were Protestants . . . between one-third and one- outstanding institutions in this respect, and half of all students were foreigners” (Ridder- the first two especially attracted students Symoens 1996: 423). The Reformation from across Europe, often organised along (and the Counter-Reformation) thus did not national lines within the common university prevent students’ international mobility alto- framework and making them virtual “inter- gether, but they did channel that mobility national societies” in their own right (Kibre down certain, confessionally defined routes, 1948; see also Cobban 1975). Even the pro- undermining the less restricted Europe-wide liferation of law schools across Europe dur- mobility of the later Middle Ages. In terms ing the thirteenth century did not seriously of the content of curriculum, however, it dent the unity of the profession: so great was is easy to exaggerate the ultimate impact the prestige of the first studia generale, above of the Reformation: despite the ferocity of all Bologna, that they were able to transmit Lutheran attacks on canon law, civil law a standard curriculum and course of study to continued in its importance, and even teach- the newer academies, especially since the ing in canon law persisted at universities in latter were eager to establish their prestige Protestant countries (Helmholz 1992; Witte and reputation as providing suitable training 2002). (Brundage 2004: 26–63; see also García y A more significant and lasting change in García 1992). Moreover, because the ius the curricula of law schools was produced by commune was essentially the same wherever the other great challenge to traditional legal it was practised, doctors of civil or canon law teaching: humanism. As Donald Kelley has (or both: doctores utriusque iuris) could go explained, this worked along two main lines almost anywhere in Europe to practise; it is (Kelley 1970). The first was the development 135 9780415418768_4_008.qxd 26/11/2008 02:36PM Page 136

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of philological studies, which led to a rein- The growth of a more historical and terpretation of classical texts, often to the national focus in legal scholarship and educa- detriment of late medieval scholarship, both tion, with the concomitant decline in the canonist and civilian, whose barbarous Latinity relevance of civil law, had obvious implica- became a refrain of advocates of the “new tions for the teaching of international law or learning”. The second, of perhaps greater long- (to use a slightly looser, but, we believe, more term importance for the development of useful formulation) the application of the international law, was historical. In contrast law to international affairs. Whereas the later with the mos italicus of ahistorical interpreta- Middle Ages had had an internationally tion of texts such as the Corpus Iuris Civilis shared ius commune and a highly internation- that had been practised at Bologna (and alised legal profession, by the mid- to later elsewhere), the mos gallicus that humanist seventeenth century the international scope scholars developed in France demanded that of both had been significantly reduced. legal texts be understood in terms of their Neither canon nor, a fortiori, civil law had specific historical context and content, and entirely lost its relevance or its place on the embraced the notion that legal codes de- curriculum of law schools, but the typical veloped over time. Combined with princely law student was now receiving relatively efforts to exert control over statutory law – more training in a particular national legal which provides considerable support for the code and he emerged into a profession that, traditional focus on the importance of state although not completely nationalised, was formation to the development of modern increasingly becoming so and had patterns of international law – this led to a new emphasis international connections that were dictated on the evolution of national systems of law, by confessional boundaries rather than being often from their feudal and customary origins. European in extent. The ius gentium had By the seventeenth century, to gloss over a been an integral part of the ius commune long period of highly fruitful and original legal and was virtually inescapable by anyone scholarship, it was beginning to result in the acquiring a legal training; in a world where concept, if not yet codification, of institutes even the study of civil law could be derided of national law as an essential feature of legal as “professionally pointless”, this was less training: national institutes were studied in very the case. similar ways across Europe, but the mere One response, and an extremely important fact of their existence at the centre of law one in terms of the doctrinal changes of schools’ curricula lent a new particularism the seventeenth century that we have already to legal training and professionalisation discussed, was to institute chairs in natural (Luig 1972). Even Roman law was now law and the law of nations. In terms of its subjected to the usus modernus and studied academic disciplinary character, it is worth not- according to a comparative method, charting ing that this essentially new subject field was the various ways in which classical principles not rooted in the old civilian or cannonist had evolved in different countries rather scholarship of the ius commune (an obvious place than insisting on the Europe-wide unity of for the study of the ius gentium) but was, as the Roman legal heritage (Brockliss 1996: Laurence Brockliss puts it, “born fully 601). Coupled with the growing importance clothed, so to speak, with the foundation in of national institutes: “It was only a matter of the mid-seventeenth century of a number of time before jurisconsultants in the common- courses in the northern Protestant univer- law dominated regions of northern Europe sities, beginning at Leiden in 1658” and would declare that the study of civil law expanding quickly to Lutheran and Calvinist was professionally pointless” (Brockliss 1996: countries (Brockliss 1996: 602–603). Not 608). only does this help us to understand the 136 9780415418768_4_008.qxd 26/11/2008 02:36PM Page 137

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relative freedom, intellectually speaking, Ages clearly experienced a diminishing with which seventeenth-century scholars influence in the early modern period. The were able to begin developing elaborate obvious example is the curia which had been, new schemes of natural law and the law of among other things, a vital setting for the nations, but also one can perhaps understand adjudication of disputes about recognition why, doctrinally speaking, so many of the and for various forms of international arbitra- major authorities on the law of nations in the tion (Grewe 2000). Moreover, since the seventeenth and eighteenth centuries were Church had become increasingly dominated Dutch or German – Grotius, Pufendorf, by trained lawyers rather than theologians (see Bynkershoek, Wolff, Martens – and why one Brundage 2004; Guillemain 1962; Partner finds fewer English, French or Spanish authors 1990), this represented a major way in which discussed in conventional histories of inter- the late medieval legal profession, greatly national legal thought during that period, assisted by its internal homogeneity, was at despite the relative importance of the last in the centre of the management of international international affairs. affairs. The decline of the papacy as a site of The significance of these changes in the international adjudication and arbitration education of new generations of lawyers can during the early modern period thus implied be more fully appreciated if we also look at a significant restriction on the opportunities the kind of professional activities they might for lawyers to play such a pivotal role in dis- have pursued after they had gained their pute adjudication and in diplomatic bargain- qualifications. As was, and, of course, still is, ing more generally. the case for lawyers in general, international The decline of the lawyer-dominated papal lawyers represented clients in courts and court’s role was paralleled by other changes advised them as to the legality of specific in early modern diplomacy. In the late courses of action in cases where some aspect Middle Ages, diplomatic missions had, from of the law of nations applied. Opportunities about the thirteenth century on, increasingly to practise in this manner continued through- been staffed by counsellors and civil servants, out the early modern period: for example, with great hereditary nobles tending to courts of admiralty consistently threw up appear in a more or less ceremonial role as disputes between foreign nationals or about the head of a mission; lawyers were especially issues – such as the taking of prizes – where prominent among the new, bureaucratic the law of nations was a crucial element of type of diplomat (Queller 1967: 152–7). the process (this was the occasion for one They were not the only source from which of Grotius’ most important early writings the latter were drawn – merchants, for on international law, De Jure Praedae: see example, might well be employed on a mis- Grotius 1995; see also Ittersum 2006 for an sion with economic concerns – but they were excellent exploration of the concrete legal one of the most important: reviewing the list dispute about the prize in question). Since of ambassadors sent to Florence during the these were often disputes within what would fifteenth century, Donald Queller observes eventually come to be known as private that: “The most striking factor . . . is the very international law, this perhaps provides a large number of lawyers” (Queller 1967: reason why the latter field remained relatively 157). This was reciprocated: “Throughout the close to the theoretical scholarship of earlier thirteenth and early fourteenth centuries, studies of natural and especially Roman law when the need arose, Florence continued (Savigny 1880). to rely on the expert hand of its lawyers Nevertheless, some of the most important in relations with the Empire and with other courts where questions of international law communes and city-states” (Martines 1968: had been argued and judged in the Middle 312; Ganshof 1971; Mattingly 1955: 116). 137 9780415418768_4_008.qxd 26/11/2008 02:36PM Page 138

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One should not understate the importance tions such as the academy founded at of ceremonial, which clearly lent signi- Strasbourg or the Regius professorships in ficance to the continuing noble element Modern History at Oxford and Cambridge in diplomacy, but the detail of negotiation (Keens-Soper 1972). The curricula for these was increasingly the preserve of professional diplomatic academies, as well as emphasising lawyers. languages and the study of modern Euro- Numerous changes in diplomacy – such as pean history and statistics, included a legal the rise of the resident ambassador, charged dimension. Grotius and Pufendorf were as much with information gathering as both standardly recommended, but a highly with specific negotiations; and the growing significant addition was the insistence that humanist emphasis on oratorical and personal the would-be diplomat should familiarise or social skills – led to significant changes in himself with the history of treaties (and with the recruitment and training of diplomats. accounts of negotiations, as well as with During the seventeenth century, in France and public – that is, constitutional – law within England at least, there was a trend towards the various European states). the recruitment of diplomats from the milit- The need to study treaties helped fuel ary, rather than the legal profession (Roosen demand for a new and influential genre of legal 1976: 67; see Black 2001: 44). When ques- scholarship. One of the key figures at the tions about the appropriate qualifications for French Academy, Jean-Yves de Saint-Prest diplomats were raised, the kind of education compiled a collection of treaties from French that was thought useful was quite different archives for his charges, while an even more from a detailed study of the law, still less ambitious work was put together by Jean the possession of a doctorate. David Horn Dumont as his Corps Universel Diplomatique du remarks that, in the English service, “the Droit des Gens (Dumont 1726). Dumont one technical accomplishment demanded of began his multi-volume work by making young men who wished to make a career in an explicit distinction between the “corps diplomacy was a knowledge of French” and diplomatique” that he was trying to create and he observes that there was a general disdain the “corps du doctrine” that he attributed to for university education among serving scholars such as Grotius. Anticipating the atti- diplomats, expressed also by key authorities tude of Martens’ positivist science of public on diplomatic practice such as Abraham law, Dumont paid lip service to the import- de Wicquefort (Horn 1961: 136; but also ance of natural law, but it was very clear that 134–5). It is perhaps revealing, although we he thought the study of natural law and the would be wary of overemphasising the law of nations in the manner of the late point, that detailed studies have found little seventeenth-century German and Dutch evidence of serious legal training among universities was less relevant than a famil- either the Dutch or Spanish ambassadors at iarity with the texts of treaties, something Munster during the negotiations for the that is virtually absent from, for example, Peace of Westphalia, although the terms of Pufendorf’s work. His approach represented the treaty do show some influence of tech- a novel way of studying international law and nical legal concepts from Roman law one that, in the context of the early eighteenth (Winkel 2004: 234). century at least, was essentially outside of During the early eighteenth century there formal training at the universities, but which were a number of attempts to provide had an avowed focus on the practical needs some specialised training for diplomats, most of the diplomat. famously in Torcy’s short-lived Académie Dumont was under no illusion about the Politique, established in 1712 but which only relationship of those needs to the abstract moral survived for a few years, and related institu- principles that were increasingly informing 138 9780415418768_4_008.qxd 26/11/2008 02:36PM Page 139

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academic studies of natural law, culminating national society during the nineteenth in the work of Wolff and Vattel, and there is a century (for example, Anderson 1993: 121). frankness of raison d’état in his discussion of To extend that idea, we might say that the way that the value of studying treaties and one of the essential elements of the unity of negotiations is to understand how princes late medieval Christendom, more important conceive their interests, to keep score in the than the always dubious and contested claims competitive business of international relations, to “universal monarchy” made by Pope and to have a wealth of diplomatic formulae to Emperor, was an international of legal pro- manipulate to one’s immediate purposes and, fessionals, trained in similar ways to expertise at the most, to be able to expose attempts by in a shared ius commune, which could be applied rulers to break or manipulate the terms of the in a variety of judicial and diplomatic settings treaties they have previously signed. to ensure the legal regulation of relations As with other, similar works that laid the between princes. One theme that we may take foundations for European public law – one from standard histories of the development might point, for example, to the work of of early modern international law is that this the Abbé de Mably in the mid-eighteenth international of lawyers was undermined by century (Mably 1758) – Dumont’s was an the state-building efforts of absolutist princes, essentially practical body of scholarship, for who, as they exerted control over law mak- the most part constructed outside any formal ing and courts’ jurisdictions, channelled the university setting: he was trying to develop professional opportunities for lawyers down an account of the law of nations that would essentially nationalistic lines and made a be serviceable for potential diplomats. The highly specialised legal training less valuable practice of private international law remained as a qualification for diplomatic service. But basically tied to the representation of clients it was also profoundly influenced by religious in courts, and so retained much of its univer- and educational reforms, especially human- sity, civil and natural law focus; but the public ism, that transformed the ways in which activities of international lawyers became lawyers were trained and socialised into their increasingly oriented towards diplomatic profession in ways that fragmented the field. relationships rather than judicial processes, and When a new common idiom was established so the positivist–historical approach to the towards the end of the eighteenth and the study of treaties pioneered by Dumont and a beginning of the nineteenth centuries, it few others was to become a vital ingredient was quite different from the old ius commune, of legal doctrine during the later eighteenth being grounded instead in the comparative century, as it gradually filtered back into study of the national legal systems of the universities and inspired a flurry of text- “civilised” countries and the historical ana- books on public international law that, as with lysis of treaties, which, together, defined the Martens’ influential early study, cloaked European public law and permitted European their basic focus on treaties as the primary states to exert considerable authority in source of international legal rules beneath redefining the terms of any extra-European the scholarly respectability of an often thin law of nations that might be held to govern veneer of natural law theory. their relations with non-European peoples. Changes in the professional community that practised international law were the Conclusion other side of the coin to the conceptual and doctrinal changes that one may observe in Diplomatic historians often refer to the the transition from Vitoria to Martens, via existence of an “aristocratic international” as Grotius, Pufendorf and so on. It is not a crucial ingredient of the solidarity of inter- particularly helpful to ask whether one or 139 9780415418768_4_008.qxd 26/11/2008 02:36PM Page 140

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the other played the more decisive role. The profession that had, thanks to humanist doctrinal innovations of a Grotius, for which educational reforms at law schools, lost its old one must give credit to his phenomenally wide foundations on the Digest and the Decretum. learning and individual brilliance at harmon- Similarly, if we ask why the voluntarism that ising diverse sources into a coherent system, lurks in Grotius’ system became so triumphant undoubtedly had a significant effect in help- in the positivist legal science of the late eigh- ing to shape the new field of natural law and teenth century, a major part of the answer the law of nations that became an essential part to that question is that the ground was laid of legal training in northern European coun- by changes in international arbitration and tries in the late seventeenth century. But at diplomacy (if not so much in private inter- the same time, if we ask why De Jure Belli ac national law) that had made comparative Pacis was so enthusiastically received and so national law and treaty histories essential: rapidly attained its status as a seminal work, Martens’ Precis du Droit des Gens was an ideal a major part of the answer lies in the fact that textbook for a field of public international law a book of such stature was needed by a legal practised in such a manner.

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9 The legacy of the nineteenth century

Martti Koskenniemi

The period from the late eighteenth century to the humanitarian internationalism draws inspira- First World War shaped both the humanitarian tion from such nineteenth-century moments internationalist approach to international law and, as the conclusion of the 1864 Geneva Con- through the vocabulary of legitimacy that accom- vention for the treatment of the wounded in panied the consolidation of the European states armies in the field, the delivery of the first system, its emphasis on sovereignty, state power important arbitral award in the “Alabama” dis- and the balance of power. Different national per- pute between Britain and the United States spectives also began to emerge over issues such as in 1872, and the convening of the first colonialism and the law of the sea, with barely dis- peace conference in the Hague in 1899. The guised national rivalries shaping much of the establishment of the first university chairs in discourse. Underlying all this, we may discern a international law proper and the regulariza- fundamental tension between international law tion of legal advice as part of the foreign as “apology” for state power – which was seen as policy of European powers in the last third essential to an effective system of international law of the nineteenth century configured the field – and as “utopia” – or a means of constraining in terms of a pervasive opposition between state power. Towards the end of the century, they more or less “idealistic” and “realistic” ap- were expressed in a rhetoric that envisaged inter- proaches that still structure professional imag- national law essentially as a social phenomenon. ination in the field. This chapter reviews some of the intellectual debate But like every commonplace, this involves that accompanied these developments. simplification. The experience of the nineteenth century grew out of eighteenth- century European themes such as secularism, The long and short nineteenth imperialism, and the tension between public century law sovereignty and private rights of civil society that have accompanied and jus- Much of what we recognize as distinctively tified the expansion of diplomacy and war, “modern” about twentieth-century polit- on the one hand, trade, technology and ical culture is a development of aspects of European notions of “civilization,” on the nineteenth-century thought and experience. other. Twentieth-century lawyers have under- This applies to international law as well. Its standably looked back to the immediately 141 9780415418768_4_009.qxd 26/11/2008 02:37PM Page 142

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preceding years as delineating, for them, pean state form.1 Joined in Immanuel Kant’s the sense of political and legal possibility. famous essay from 1784 on the “idea for a The powerful post-1919 association of inter- universal history with a cosmopolitan pur- national law with public international insti- pose” (Kant 1991), these ideas lie behind tutions – establishment of the League of the development of international law from Nations, Permanent Court of International a philosophical preoccupation in the eigh- Justice, International Labor Organization, teenth century to an instrument of diplomacy among others – reflects efforts and proposals and an academic discipline in the nineteenth that emerged during the last third of the nine- and an institutionally oriented formal–legal teenth century but whose roots lie further technique in the twentieth century2 – each back in European modernity (see, especially, period conserving something of the memory Kennedy 1987). The dynamic between of its predecessor as a residue of assumptions historicism and rationalism, statehood and and fallback positions. the “international community” that struc- By the same token, a break should be made tures nineteenth-century legal doctrine and around the year 1870. The emergence of a the obsession with the balance of power united Germany after the Franco-Prussian that does the same for diplomatic practice, war (1870–71) completely transformed the rehearse eighteenth-century themes: the structures of political, cultural and also legal specter of revolution in Europe and the uni- hegemony on the continent.3 Outside, Euro- versalism that animates Europe’s relations pean powers turned from informal to formal with the rest of the world develop aspects empire. Liberal ascendancy in European of Enlightenment thought. Nationalism is governments reached its peak, and the first certainly one legacy bestowed by the nine- signs of a new great power emerged in the teenth to the twentieth century. But its roots western hemisphere.4 The last third of the lie further back in the vocabularies of legit- century and the beginning of the next until imacy that accompanied the consolidation 1914 famously constitute a “short nineteenth of the (European) states system. century,” which, for our purposes, may be There is thus a “long” nineteenth century defined as the moment when the conscious- that encompasses the practice and thought ness of European elites had formed around about international law and politics as an out- a cosmopolitan worldview, expressed in cul- growth of European modernity – the forma- tural and political commitment to what the tion of the nation state, the tension between lawyers called “ésprit d’internationalité” sovereignty and liberal individualism, influ- (Röben 2003: 152–6) and projected in such ence of technology and economic growth institutional forms as the first professional on state power, secularism, rationalism and journals (the Revue de Droit International et belief in progress as a lingua franca between de Législation Comparée in 1869, the Revue international elites. The nineteenth century Générale de Droit International Public in 1894) gives form and constancy to such (and other) and associations (the Institut de Droit Inter- themes that lead into the twentieth century’s national and the Association for the Reform most characteristic moments: the creation of and Codification of International Law [later world economy and a global technological cul- International Law Association], both 1873) ture; totalitarianism and total war; decolon- (Koskenniemi 2001: 39–41 and notes ization, environmental destruction, human therein). Multilateral diplomacy took on a rights. Two ideas are particularly important legislative role at the Berlin Congresses of constituents of international law’s “long 1878 and 1885 and the two Hague peace nineteenth century”: the view of history as conferences of 1899 and 1907. Peace societies “progress” and the association of “progress” that earlier in the century had focused on with the becoming universal of the Euro- economic and social issues began to make 142 9780415418768_4_009.qxd 26/11/2008 02:37PM Page 143

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proposals for general and compulsory arbitra- 2003: 15–39). Lieber and his European tion of international disputes and were joined colleagues looked for change as much as they by arbitration societies, national parliaments wanted peace and stability and fitted those and even some governments (Hinsley 1963: objectives together in an account of indi- 114–52). The first technical international vidual rights and the gradual civilization organizations (the so-called “unions” such as that would in due course extend to non- the Universal Telegraphic Union of 1865 and European peoples owing to what they hoped the Universal Postal Union of 1874/1878) would be the increasingly enlightened pol- were set up to foreshadow what one influen- icies of the powers themselves. The ambi- tial international lawyer of the period already valence of this optimism – a critique of state called “administrative law of an interna- power and a simultaneous reliance on the tional community” (Martens 1883–87: esp. beneficial effects of that power – was a major vol. 3).5 heritage passed from the fin-de-siècle to the Much of the legal–institutional activism that twentieth century. emerged during 1919–39 as well as again after 1989 is inspired by or follows on initiatives made and ideas expressed in the last third A divided legacy of the nineteenth century. It is really that moment international lawyers remember But the memory of the Victorian century when they speak about the nineteenth cen- is far from uniform. First, it was a European tury (Kennedy 1996).6 And yet, there is a point century. For the world outside Europe in retaining the years between the Congress and Europe’s white settlement colonies, the of Vienna (1814–15) and the Franco- nineteenth century organized itself in accord- Prussian war (1870–71) in an account of ance with a different collective calendar, the legacy of the nineteenth century as the marked by different forms of colonialism. This background against which later developments was not a uniform experience either for should be understood. Many of the initiatives the colonized or the colonizing power. The were made in reaction to the “dangerous” techniques of colonization varied between policy of the balance of power and the con- different moments and locations. Until late in nected principle of legitimacy, translated in the century, British overseas domination was due course into external state sovereignty and maintained by private actors, usually organized the primacy of domestic jurisdiction. Where in colonial companies that were chartered the beginning of the century, from the point to carry out some administrative activities, of view of international law, was conservat- while French and Russian colonization took ive and often nationalistic, the last third was place through official policy and often by liberal and cosmopolitan.7 This is illustrated military conquest. Towards the end of the cen- by the life of one key international law act- tury, however, the technique of the “cat’s ivist, the Columbia Professor Francis Lieber paw” had shown itself inefficient and open (1800–1872), who had come to the United for flagrant mistreatment of the populations States in 1827 as a refugee after having so that the British and even the Germans participated in revolutionary activities across who as latecomers had opted for the technique Europe. By 1870 he had become the of informal influence moved to formal initiator of the professional organization of annexation (see Anghie 2005: 32–114; international lawyers and his work for the Koskenniemi 2001: 98–178).8 “Lieber Code” for the use of the Union armies The transformation from informal to formal in the U.S. Civil War was inspiring the empire is the century’s principal colonial adoption of humanitarian laws of warfare theme.9 It is accompanied by a bewildering around the world (see Hartigan 1983; Röben variety of legal forms applied in different 143 9780415418768_4_009.qxd 26/11/2008 02:37PM Page 144

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localities, ranging from unequal treaties, cannot be understood without reference to hinterland claims, arrangements for special the colonial experience. “treaty ports” ( Japan and China), the use of Second, the legacy of the nineteenth cen- consular jurisdiction or mixed tribunals so as tury is also divided inasmuch as its develop- to exempt Europeans from local jurisdiction, ment in different parts of Europe and the to different kinds of protectorates or other world followed different local experiences and kinds of dependency in Africa and the Far East. variations of political and legal culture. In the No single legal regime and thus no single early years of the century most publicists con- experience of “colonial international law” ever tinued to write about a droit public de l’Europe, emerged. The same concerns the European one that was adopted from practices and use of the vocabulary of “civilization” so as writings of the pre-revolutionary period. Its to mark levels of development of non- focus was on the laws of warfare, diplomacy European communities. Although distinc- and treaty making, and it often adopted the tions between “civilized,” “half-civilized” principle of the balance of power as its start- (or “barbarian”), and “savage” communities ing point.11 The continued widespread use were routinely made, they did not link to of Emer de Vattel’s Droit des Gens ou clearly identifiable legal forms of institutions Principes de la Loi Naturelle appliqués à la (see Gong 1984; Koskenniemi 2001: Conduite des Nations et des Souverains (1758) 132–6). Colonialism began as a “science” only remained an anachronism, however, and the within the mandates system of the League of old-fashioned naturalism of its theory and Nations in the 1920s and then in theories of the uncertainty about who the subjects of “development” in the 1950s and thereafter the law of nations really were, reflected in its (Anghie 2005: 182–7; see, further, Trubek and title, called out for new articulations of the Santos 2006). Until then, the meaning of a field. It was one thing to argue in terms of term such as “protectorate” (or “colonial pro- legal theory according to which owing to the tectorate”) or the relationship between local absence of a common sovereign above them, and European laws, for example, depended princes and nations remained in a state of completely on changes of policy fashion in nature, and another to come up with reliable the capital – usually on how much money was rules and institutions as deductions from it. available for administrative or commercial In the 1830s and 1840s publicists from dif- investment in the colony. ferent parts of Europe were voicing concern International lawyers were enthusiastic about the state of the law of nations – either, colonialists and, for example, greeted the as the Germans did, lamenting the absence of allocation of the Congo to King Leopold at “system” from the treatment of the disparate the Berlin Conference of 1885 with satisfac- materials or then, with British students of tion.10 But it says something about the over- Bentham, worrying over the absence of whelming predominance of Europe that mechanisms of enforcement other than that even the principal anti-colonial vocabulary of the elusive “public opinion.”12 was European: sovereignty, liberal human- Alongside this old law, and with increas- itarianism, or the principle of “nationalities” ing intensity towards the end of the century, that turned into the call for self-determination specific French, British, German, Russian, after the mid-twentieth century. In both of American, and Latin American international its forms – as memory of alien rule and a desire law themes and priorities began to emerge. for collective selfhood, colonialism defined There was an active internationalist legalism much of the international law and politics of in small countries such as Belgium, Nether- the twentieth century so that the paradoxes lands, and Switzerland and liberal lawyers from and ambivalences that associate with later each became leading members of the new pursuits of “universal” international law profession towards the end of the century 144 9780415418768_4_009.qxd 26/11/2008 02:37PM Page 145

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(see Koskenniemi 2001: 1–97). Turkish and realm or whether one saw its development Italian voices put forward proposals focusing in common law terms (as Fredrick Pollock did) on specifically Turkish or Italian themes as spontaneous custom and the accumula- such as reform of consular jurisdiction or the tion of case law from arbitral tribunals and a application of the “principle of nationalities.”13 future international court.17 Nevertheless, Legal attitudes towards colonization were the predominant role of the textbook writer influenced by whether one’s experience had and indeed of the (often many volumed) text- been expansion by trade (as in Britain) or book as a kind of functional equivalent to the warfare (as in France) and how early or late code book seemed unaffected of these divi- one had joined the colonial game. The way sions and remained often the most tangible in which law of the sea issues, for example, aspect of the profession.18 were discussed reflected one’s position either The legacy of nineteenth-century interna- as a maritime or a non-maritime power. In tional law is not a uniform datum that would the long struggle that began in 1815 against translate a homogeneous experience into the slave trade many nations – especially France linear causalities or associations of meaning – continued to oppose the British position that in the subsequent political–legal world. The navies ought to have the right of visit on sus- century itself was traversed by several import- pected slavers as an attempt at illegitimate ant divides: between its early and late parts; extension of Britain’s maritime dominance.14 between Europe (and the United States) and In fact, much of the writing that came out the rest of the world; and between differ- from France in the first part of the cen- ent European–American experiences. The tury was programmatically oriented against following sections are organized by way of British policies.15 A self-conscious “particu- giving an eye to themes that consolidate in larism” was developed in Latin America the nineteenth century and become import- whose colonies had used the Napoleonic ant, even decisive, aspects of the legal con- incursion into Spain in 1808 to proclaim inde- sciousness of the period after 1919. pendence from the motherland. A strong bias against external intervention, supported since 1823 by the Monroe Doctrine, was Doctrines: Between apology and buttressed by an indigenous effort to com- utopia plete the “civilization” of the continent by various forms of legal cooperation undertaken International law arose as an aspect of the early between the elites of the new states, well rep- modern political theory of natural law – ius resented in the United States and (especially) naturae et gentium – in the late sixteenth and continental Europe by lawyers such as Carlos early seventeenth centuries. In the course of Calvo and later Alejandro Alvarez.16 the eighteenth century, it had diverged into Even differences in legal education played three distinct streams. One had developed a part. Whether one saw public international especially at universities in post-Westphalian law as a sister to private international law (as Germany in connection with the project of in Italy or France), or whether it was taught consolidating the power of the territorial as “external municipal law” principally in states.19 For it, the law of nations was an connection with domestic constitutional aspect of the government of the state in its principles about treaty ratification (as in external relations in view of preserving and Germany) was not at all irrelevant to how one strengthening the security (and sometimes saw the direction and possibilities of inter- the welfare) of its population.20 The view of national reform – for example, whether international law as “external public law” one was to think of it in terms of the formal remained influential in the German-speaking “constitutionalization” of the international realm well into and even beyond late 145 9780415418768_4_009.qxd 26/11/2008 02:37PM Page 146

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nineteenth century. It derived international as men remained men, had no chance of ever law from the will of the state and focused on being realized. international law’s connections with con- Revolutionary thought entered nineteenth- stitutional law and the hierarchical position century France, Germany and other conti- of treaties in the domestic legal system. nental contexts (to the extent that it did) Outside Germany, it was often taken to imply in the form of a variety of theories of indi- a rather minimal conception of a state’s vidual, often constitutionally argued human international engagements and sometimes rights.22 It received little hearing from the inter- indicted as an aspect of the kind of “positivism” national law theories of early nineteenth and sovereignty centeredness that gave legal century – and even less from the diplomacy expression to the extreme nationalism that of the period – but it did gradually, in a domes- was responsible for the First World War.21 ticated form, become part of the professional Because its standpoint was that of the state, rhetoric of the legal activism of the century’s it was, according to critics, unable to create last third (see, especially, Bluntschli 1872: esp. a law that would be binding on the state (see 18–20, 26–7, Koskenniemi 2001: 54–7). Kelsen 1928). Between the Fürstenrecht produced and Another stream of universalist–naturalist developed in older German natural law and thought developed in France as an aspect the revolutionary abstractions of the French of the criticism of the ancien régime. From polemicists, the professional mainstream Fénélon and the Abbé de Saint-Pierre, turned away from natural law as a set of exces- themes about perpetual peace and universal sively abstract (and in this sense arbitrary) humankind had been taken into the writings maxims that could not form part of a prac- of the philosophes – rarely, however, with tical ius publicum Europaeum and instead con- any well-formulated institutional or legal centrated on systematizing and interpreting proposals (for an overview, see Bélissa 1998). treaties and European practices, understood Rousseau remained skeptical of the extension as a working system of largely customary law.23 of enlightenment ideas into the international For Bentham (1843: 535–71) who famously world and regarded the balance of power as coined the term “international law” to still the best guarantee for peace (Rousseau replace the older “law of nations” the task was 1761 [1756]). Even Montesquieu’s Esprit des to project the search of the greatest utility of Lois limited its view of international law to the greatest number from the domestic to the one abstract principle, namely that “[d]iffer- international field. Neither of his students, ent nations ought in time of peace to do to James Mill and John Austin, continued in this one another all the good they can, and in times vein, however, although each sought to proof war as little injury as possible, without prej- vide a realistic view of the field, the former udicing their real interests” (de Montesquieu by stressing the role of sanction in law and 1949: 5). In 1795 a proposal was made in the imagining public opinion – public shaming French national convention for the adoption – in this role, the latter more skeptically giv- of a declaration of the rights and duties of ing it up as a legal topic and relegating it into nations that would do for the international the field of “positive morality” altogether system what the Déclaration des Droit des (see Austin 1954 [1832]; Mill 1825; see also l’Homme et du Citoyen had done at home. The discussion in Sylvest 2005: 12–18). declaration was never adopted but it inspired The success of Vattel’s old Droit des Gens critical reflection from lawyers such as the from 1758 still in the nineteenth century could Göttingen professor and later diplomat Georg also be understood in terms of the useful com- Friedrich von Martens (1796: iii–xvi) who promise it contained between the naturalist attacked it as an assemblage of pious wishes legitimation of the diplomatic system and the about equality and peacefulness that, as long practical usefulness of the exposé of the 146 9780415418768_4_009.qxd 27/11/2008 11:34 AM Page 147

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techniques of foreign relations it contained, international lawyers organized themselves providing a credible interpretation of war, in 1873 in the Institut de Droit International, treaties and diplomacy as aspects of an actu- they defined their profession as the “jurid- ally operating legal system. Owing to the turn ical consciousness of the civilized world” and in doctrine to commentary on treaties and set up a program of codifying international diplomatic practices, many historians have law in scientific restatements that may have labeled the nineteenth century an era of regarded European practices as authoritat- “positivism” (see, e.g. Neff 2005: 169–76, ive (and were in this regard “positivist”) 2006: 38–46; Nussbaum 1954: 232–6). The but received this from a (naturalist) view of ambiguity of the expression “positivism” the direction of progress in the “community notwithstanding, this ignores persistent of civilized nations” (Koskenniemi 2001: strands of “naturalism” in the century’s legal 39–41). doctrine, constantly referring back to the moral While many nineteenth-century lawyers and civilizing force of European laws and prac- stressed the need to study international law tices. The definition of the field by the on the basis of treaties and other European British lawyer Sir Robert Phillimore (1879) practices so as to avoid collapsing it into captures a widely shared understanding: dubious (and inherently political) moral “From the nature of states, as from the nature preaching, others used it to critique the pol- of individuals, certain rights and obligations icies of European powers, rejecting balance towards each other necessarily spring . . . of power or “sovereignty” as the law’s These are the laws that form the basis of authoritative foundation. Both groups were justice between nations.” The U.S. lawyer hoping to construct space for international Theodore Woolsey (1879: 14) expressed law beyond (mere) “politics,” understood as the same idea by criticizing the view that “subjective,” “arbitrary,” dangerous, and so international law could be understood in on, but conceived “politics” in contrasting “narrowly” contractual terms: ways, some associating it with moral abstractions, others with state power. To reduce inter- In every contract it may be asked whether national law to either would have meant doing the parties have a right to act at all, and away with its quality as “law.” if so, whether they can lawfully enter into This inaugurated the basic doctrinal dyn- the specific relation which the contract amism of twentieth-century international contemplates ...A voluntary code of rules law as well. On the one side, there has been cannot, for this reason, be arbitrary, irrational, the effort to support international law’s real- or inconsistent with Justice. ity and effectiveness by highlighting its close relationship with state power – on the other From such widely articulated basis, it became side, the pursuit of autonomy for the law from possible for the novel profession to subject any the policies and diplomacy of states so as to diplomatic rules or practices to the critique ground its moral and political appeal.24 But of its moral conscience. Law, mainstream neither path could be pursued irrespective of lawyers were saying (or at least implying), did the other. not come about (merely) by treaties between To explain international law by reference sovereigns (although these were an important to principles beyond diplomacy and state source) but through a process of consolida- power undermined its concreteness and the tion from practices of European societies, verifiability and reliability of its conclusions. understood to reflect the increasing “civil- To focus too intensively on state behavior or ization” of international contacts that could will reduced it into an instrument of shifting be laid down in works of scientific codifica- policies and failed to give room to the pro- tion (see, especially, Bluntschli 1872). When fession’s civilizing ethos. The dilemma of 147 9780415418768_4_009.qxd 26/11/2008 02:37PM Page 148

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“apology” and “utopia” thereafter came to as the rationalist abstractions of their eighteenth- structure the way abstract reflection about century predecessors. When Henry Sumner the nature and progress of international Maine (1887) replaced Westlake at the law would be conducted in the twentieth Whewell Chair of International Law at century in terms of the opposition of more Cambridge in 1887, he had no problem in or less “idealistic” and “realistic” approaches. conceiving of the field in terms of European Increasingly, however, this type of abstraction developments and Roman law techniques. was set aside as inconclusive and was replaced Second, the historical approach involved by another type of vocabulary, namely the a teleology (Neff 2006: 45). Late nineteenth- debate about international law as a “social” century works uniformly assumed that Euro- phenomenon. The substitution of the (old) pean modernity constituted the highest language philosophy by vocabulary of the point of human civilization and that it would “social” was another legacy from the nine- also form the goal of developments elsewhere. teenth century to the way international law This would involve cessation or humaniza- has been understood and debated in the tion of warfare, advancement of economic twentieth. liberalism and the all-round cultural and political progress of “modernity.” History developed through “stages” to ever expand- Practices: International law and ing forms of civility and culture.25 Even the society century’s early writers who focused on the practices carried out under the policing eye That international law was a “social” phe- of the great powers assumed that international nomenon meant above all two things. First, law’s growth would follow the increasing it was to be understood historically, so that economic and cultural contacts between determining its content would have to nations, their interdependence – a word that involve reflection of how people – rulers, states Francis Lieber (1868: 22) claimed to have and lawyers – have thought and acted in the invented. Public opinion would play a great past. The nineteenth century inaugurated role in this regard.26 Few lawyers expressly the practice of treating international law as an adopted the language of Immanuel Kant’s 1784 outgrowth of European diplomatic history essay about the “Idea for a universal history from the emergence of the nation state and with a cosmopolitan purpose” but almost all from the Treaties of Westphalia (1648), shared its major premise – namely that with supported by a continuum of philosophical the progress of modernity, the world would reflection from Hugo Grotius and the Spanish be gradually united in a community of indi- scholastics to present pragmatism. Alongside viduals organized under peaceful republican specifically historical works such as those constitutions (Kant 1991).27 The argument by Ward (1795) and Wheaton (1853), text- about a “liberal peace” – the increasing eco- books and monographs invariably included nomic cost of warfare – that had been made opening sections treating the diplomatic and by Kant and Benjamin Constant became part literary histories as carriers of political and legal of the educated legal common sense.28 ideas from which rules were derived in a way Nevertheless, with the significant excep- that was specific to each context or period. tion of a number of religiously inclined Although the high point of Savigny’s histor- activists in the United States,29 most lawyers ical school was over by the middle of the nine- stayed aloof from the peace movement of the teenth century, key internationalists such as 1840s and 1850s composed in part of polit- Bluntschli or Westlake had been trained in ical activists, even revolutionaries who saw thinking of the law in historical and cultural no reason whatsoever to regard the mores terms against what they had learned to attack of European elites as rudiments of a world 148 9780415418768_4_009.qxd 26/11/2008 02:37PM Page 149

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government (see, e.g. Proudhon 1927 limited became increasingly thin. As long [1861]). For them, it was part of the prob- as sovereignty could be seen in sociological lem rather than the solution. With the or cultural terms and its different forms successful settlement of the Alabama Affair in (“absolute” or “popular” sovereignty, state 1872, however, the peace movement turned sovereignty) could be understood to reflect increasingly to international law and arbitra- the histories of European societies, there tion and lawyers began to participate in its was no problem to fit it into a teleological ranks (see also Schou 1963: 305–37). Tension frame pointing to progress and future unity. between the two groups – lawyers and paci- Separated from such an understanding, fists – continued to be reflected for example however, and argued in universal, even log- in the almost simultaneous establishment in ical terms as unconditional independence, 1873 of the two societies, the Institut de Droit on the one hand, “sovereign equality,” on the International and the Association for the other, it began to seem incompatible with any Reform and Codification of International Law, idea of a binding legal order. the former consisting of a limited number Nevertheless, the idea that state sovereignty of elite jurists often with close contacts to did not signify any independence from international policy leadership, the latter a more national law became part of the legal common broad-ranging forum for internationalists sense towards the end of the century. The pre- bent on the preparation of an international dominant way to reconcile sovereignty with code for the establishment of peace (Abrams a binding international order was received 1957). then (as it has been since) from the raison It was only gradually in the course of the d’état tradition that had always separated eighteenth century that “states” came to be the “arbitrary” interests of states from their regarded as subjects of international law “real” interests – the latter being covalent with alongside kings, or “sovereigns,” peoples and the presence of a robust system of keeping nations (Schröder 2000). This use was stab- one’s promises (see, especially, de Rohan 1995 ilized as the administrative structures of the [1638]). This separation was expressed in the European nation state were consolidated in now odd fashion that was carried over from the early nineteenth century. Foreign affairs the eighteenth century into the nineteenth and were organized as part of state administration emphasized the need of a properly “scientific” and international law turned from philo- approach to international law – a view high- sophical speculation to governmental practices lighting the role of academics in their role as of negotiation, treaty making and formal counselors to government and of the func- diplomacy. However, accepting that inter- tion of law as a technical knowledge about national law’s proper subjects were “states” the management of foreign affairs. Sovereigns and that the law itself should be seen as an were not to act out of short-sighted or other- effect of “state will” gave rise to the puzzle wise elusive “passions” but were to follow about how international law could possibly what best comparative and historical – and be “real,” that is, both an effect of state will of course legal – studies would suggest was and still binding on that same will, especially in their long-term interests (see Hirschman in the absence of a supra-state institution of 1997). It is perhaps no wonder that this view law enforcement.30 was most forcefully represented in German If the theory of sovereignty arose as a tool public law that had since the Peace of for the internal pacification of European Westphalia been accustomed to examining the societies in late sixteenth and early seventeenth relations between the Holy Roman Empire centuries, its external implications began to and the territorial estates precisely in view of seem problematic as the naturalist frame in a sovereignty that would be compatible with which it had originally been argued and the harmonious co-existence of both.31 149 9780415418768_4_009.qxd 26/11/2008 02:37PM Page 150

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An influential extension of these doctrines law, leading the law into a formal and pro- to international law was accomplished by the cedural direction, away from views about Austrian public lawyer Georg Jellinek in the substantive rightness or wrongness of 1880 as follows. States are bound by treaties particular types of behavior (Kennedy 2006: because they will so. But this does not mean 61–62). that they could discard their obligations by changing their will. For that will is not free. It is limited by what Jellinek, borrowing his Into formalism vocabulary from what earlier ius publicum used to label Staatszweck, the purpose of the The focus on sovereign statehood as the state, namely to provide protection and wel- law’s operating center made it possible to fare to its people (see Preu 1980: esp. 107–25). conceive the various legal institutions and This was possible only in cooperation with principles by analogy to the domestic law others. The nature of the international world of a liberal society that imagined itself as a – Natur der Lebensverhältnisse – required that contractual arrangement between originally states keep their word ( Jellinek 1880). free and equal individuals: The “rational Jellinek, a friend of Max Weber’s later in life, and moral grounds of international law,” like generations of international lawyers after Woolsey explained, are “the same in general him, employed a sociological naturalism to with those on which the rights and obliga- understand international law: It is binding tions of individuals in the state, and of the because that is socially useful.32 single state towards the individuals of which From the late nineteenth century onwards, it consists, repose” (Woolsey 1879: 14). The international lawyers have been critics of significance of the point lies in the way it “sovereignty” as egoism, arbitrariness, and the proposes to end the debate about whether absolutism of state power. The contrary to in matters of state the morality of individuals sovereignty was international law. Jellinek’s or a special morality of states would apply. sociological explanation to international In fact, there would be no “morality” at all, law’s binding force was only the sharpest but a set of neutral and objectively deter- formulation of what fin-de-siècle jurists minable formal rules that would henceforth often discussed in terms of the “Austinian empower, coordinate and limit the activities challenge.” Under it, being bound by one’s of states in the international world to the promises was not really derogation from practical satisfaction of all. To found the law sovereignty but an effect of sovereignty: a on “sovereignty” instead of some substantive construction formalized by the Permanent rights or wrongs would produce a law that Court of International Justice in the would be both realistic and forword looking, Wimbledon case in 1923 (S.S. Wimbledon a sword and a shield, as the moment might Case: 9–10). It also allowed the critique of require (see also Koskenniemi 2005a: any existing international arrangement as 143–54). either too respectful of sovereignty (and Accordingly, the law of territory, for thus reform in an internationalist direction) example, was consolidated in the nineteenth or then too far reaching derogation from it century following domestic doctrines about (and thus a justification for claims of auto- the procedures to be followed in the acquisi- nomy and national jurisdiction). The legacy tion and possession of as well as succession to of the nineteenth century was not excessive property (see further Carty 1986). The rule deference to sovereignty (arguments against that grounded territorial rights on effective such deference were common then as they occupation crystallized in the nineteenth are today) but rather the emergence of century as against merely symbolic forms of “sovereignty” as the key topos of international annexation thus transposing a Roman law 150 9780415418768_4_009.qxd 26/11/2008 02:37PM Page 151

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notion that had been already included in the “peace” and in which special rules of the game century’s German and Swiss civil law codifica- would apply. Professional lawyers concentrate tions at the international plane (Lauterpacht in great detail on working out what those 1927 [1923]: 112–16). Although lawyers rules are, highlighting for example, that the continued to make the distinction between public nature of war would no longer pro- ownership and jurisdiction, their continued vide room for private armies or privateering, overlap in argument resembled the earlier definitely abolished in 1856, or the indis- difficulties of keeping up the analytical criminate looting or destruction of private separation between the legal notions of property situated in occupied territory. As a dominium and imperium, that is, domestic and public law procedure, war was strictly lim- international types of authority (Lauterpacht ited to activities of the belligerent parties in 1923: 91–99). a way that led into detailed discussions of rights Likewise, nineteenth-century develop- and duties of neutrality as well as efforts to ments in the law of treaties came about as elab- keep war from disturbing private commerce. orations of general principles and Roman For the humanitarians, too, the strategy con- laws of contract: The right of making treaties sisted in maintaining strict separation of war was thought as one of the essential attributes from peace so as to then diminish its scope of sovereignty in the same way as the right as much as possible. It is striking in what detail to make contracts is an aspect of free per- nineteenth-century lawyers lay out procedures sonhood (Davis 1908: 234). Accordingly, concerning the identification and treatment rules concerning the conclusion of treaties, of contraband goods, for example, assuming conditions of validity, binding force, inter- that even in the midst of a war – at least war pretation, application and termination were between “civilized nations” – the belligerent all derived from a contractual analogy that powers retain the ability and willingness for played on the familiar opposition of “will” and cool analysis and reason, a “sunny optimism” “reason,” voluntas and ratio in the explanation about the business of fighting (Neff 2005: of the binding force of treaty law and in the 177–201). interpretation of treaty provisions (see, e.g. But even in the nineteenth century, a Koskenniemi 2005a: 333–45, Zoller 1977: shadow of doubt hung about the power of 47–95, 202–44). Treaties are binding because these formal definitions and procedures. For and to the extent that they capture the “will” example, after the question of the justice of of the parties – and yet what counts as a valid the war had been set aside, it followed for expression of will and when might will cease practically all the lawyers that the older right to be binding is constantly measured against to punish the wrongdoer completely vanished. a strong set of background assumptions This would be contrary to the independence about the injustice of particular (types of ) of them. But few, if any lawyers, once they treaties (see Distefano 2004). thought about the matter, took this view The way concentration of the law on to its apparent conclusion. For the world formally equal sovereigns led to a procedur- seemed also full of injustice, oppression, and alization of its substance is easiest to see in the violence that “civilized nations” needed to deal laws of warfare. From the outset of the cen- with. So most lawyers, too, opened the door tury, doctrines of the just war were set aside for the use of force in situations involving and war became a part of the political every- an “extreme case of outrage ...when a . . . day, a procedure (a “duel”) within which states choice to . . . protect the weak abroad, or to sometimes chose to fight out their quarrels (see, punish the oppressor, ought hardly to be dis- e.g. Westlake 1910: 81). For this purpose, obeyed” (Woolsey 1879: 19; similarly Hall it was conceived as a public law institution – 1884). Both in state practice as well as in the “state of war” – strictly limited against the writings of leading jurists, humanitarian 151 9780415418768_4_009.qxd 26/11/2008 02:37PM Page 152

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considerations were continuously invoked in the twentieth century to the present has been defense of military operations in the frontiers a conception of international law that is of the Ottoman Empire (Neff 2005: 46). severely limited in ambition and of marginal significance as a platform over which the struggles for the distribution of the world’s Conclusion economic and spiritual resources are being waged. Perhaps it is here, in the ambivalent relationship between the legal form and the substance covered by it where the principal Notes legacy of the nineteenth century to the sub- 1 This is the so-called “domestic analogy,” sequent years lies. The suggestion was that the absolutely central to twentieth-century inter- problems of the world could be best dealt with national legalism. See, especially, Lauterpacht in a technical way by employing a formal 1927 and, for a famous critique, see Carr 1946: concept of sovereignty, juxtaposed and dis- 22–62. For a general discussion, Suganami 1989. 2 For a description of the political ethos of ciplined by formal rules and institutions. twentieth-century international law, see When the First World War put an end to the Koskenniemi 2007. Victorian optimism of the preceding years, the 3 A significant aspect of this was the force with conclusion many drew was that the law had which German public lawyers redefined the failed because it had not gone far enough in problems of international law in terms of the vocabulary of the ius publicum, developed after this project. The interwar years thus saw an the peace of Westphalia to discuss the relations intensifying critique of formal sovereignty on between the territorial states and the imperial the part of the lawyers, accompanied by an centre. See Koskenniemi 2008. effort to bind it down to increasingly com- 4 I have tried to capture the legal sensibility at plex technical rules and institutions within and that moment in Koskenniemi 2001. 5 For an excellent review of the development, beyond the League of Nations that were see Vec 2006: 21–164. intended to tie down the period’s explosive 6 The contrast between early and late nineteenth energies. The repressed returned, however, century international law is discussed in and for much of the subsequent post-war Laghmani 2003: 161–66. era, the nineteenth century and its offspring, 7 This contrast is made evident in Charles Vergé’s introductory essay to the second French edi- the interwar system, survived principally as a tion of Georg Friedrich von Martens’ textbook memory of political innocence or of cynicism of 1864 (Vergé 1864: i–lv). in the garb of innocence, depending on the 8 For an older study, see Fisch 1984. For a recent political preference of the analyst, that con- analysis of the spirit of colonialism as it was tained within itself the power of its undoing. received in the interwar era, see Berman 2007: 131–81. The analysis may be correct but insufficient. 9 The classic analysis is Robinson and Gallagher For the nineteenth-century practice of 1981. dealing with political power – using it, 10 See the declaration passed by the Institut de disciplining it – through public law Droit International on the occasion of the sovereignty and formal diplomacy also liber- 1885 Berlin conference (Institute de Droit International 1885: 17–18), and, generally, ated the most powerful social forces to mold Koskenniemi 2001: 155–66. the international world in accordance with 11 For a provocative but not incorrect discussion, their structural logic and embedded prefer- see Schmitt 1988: 111–85. ences. The legal invisibility – and irrespons- 12 For the former, see von Stachau 1847 and, for ibility – of much that has taken place within the latter, Austin 1954 [1832]: 141–42; Mill 33 1825. the “empire of civil society” is heavily 13 On the Italian tradition, see Catellani 1933. indebted to European political, social and eco- 14 The debate was waged throughout the cen- nomic history so that among the legacies of tury, and culminated in the adoption of the 152 9780415418768_4_009.qxd 26/11/2008 02:37PM Page 153

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so-called Brussels Declaration of 1890 that 23 Aside from Martens, see also Schmelzing provided for a limited right of visit. France never 1818: esp. 9–19. From the Francophone realm, joined the Declaration, however, instead pre- see de Rayneval 1803. ferring to apply the earlier set of bilateral treaties. 24 This is the theme of Koskenniemi 2005b. See Kern 2004. 25 A formal doctrine of the “recognition” of the 15 For one at the time famous example, see situation of different communities on such stages Hautefeuille 1868. is contained, e.g. in Lorimer 1884: 333–59. 16 For an insightful discussion, see Obregón 26 See, e.g. the manifesto in Rolin-Jaequemyns 2006: 247–64. A conventional account is 1869: 225–6. Espiell 2001. 27 For one significant expression of this cosmo- 17 The terms of the debate as it still continues today politan optimism, see von Mohl 1860: are clearly put by Pollock 1916. 599–636. 18 For a thorough, annotated overview, see 28 Nicely expressed in Renault 1932: 3–5. Macalister-Smith and Schwietzke 2001. 29 For a review, see Janis 2005: 97–116. 19 Its most influential representative was Samuel 30 For a recent reflection of this nineteenth- Pufendorf who adapted the natural law theor- century debate, see Distefano 2004, esp. ies of Hugo Grotius and Thomas Hobbes into 126–40. a synthesis that could be applied to the Holy 31 For an overview, see Gross 1975. Roman Empire and its territorial states but 32 Although but few have used expressly socio- that could also be used so as to understand the logical language to express this. Behind relations between European states more gener- generalities about ubi societas, ibi jus, most ally. See, especially, Pufendorf 1934 [1688]. international lawyers have persisted in speak- 20 For a discussion, see Koskenniemi 2007. ing in formal terms about treaties, customary 21 For this interpretation, see, especially, laws and general principles law – the three legal Lauterpacht 1933. sources referred to in Article 38 (1) of the Statute 22 For an overview of the situation in Germany, of the International Court of Justice. see Klippel 1976: esp. 136–97. 33 See Rosenberg 1994.

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10 Latin American international law*

Liliana Obregón

This chapter points to the importance of half of the twentieth century. Inspired by sovereignty as a principle that helped to underwrite several foundational ideas from the first the international legal system that developed post-independence internationalists of the among the newly independent Latin American states nineteenth century, LAIL was the particular in the nineteenth century. It shows how a distinc- perspective of several Latin American inter- tive Latin American International Law (LAIL) nationalists that promoted it into full force.1 emerged that drew on the experience of the “creole” LAIL can be understood as an expression of elites both during and after Spanish rule. The international legal “regionalism,” which has transnational legal consciousness that underpinned been defined as a particular set of approaches this continued to be influential with attempts to arti- and methods for examining the question of culate a regional IL in the twentieth century: albeit universality in international law, its historical one that still reflected the outlook of the (male) development, substantive issues or forms of elites. LAIL can be understood as an expression legal method. As international law became of international legal “regionalism,” which has been more specialized and responsive to func- defined as a particular set of approaches and meth- tional differentiation with the emergence ods for examining the question of universality in of special types of law that responded to spe- international law, its historical development, and cific concerns (such as “human rights law” substantive issues or forms of legal method. After or “environmental law”) instead of geo- the 1960s Latin American regionalist perspect- graphical ones, the power of LAIL as a gen- ives in international law became scarce and thus eral approach gradually diminished and fell gradually irrelevant and forgotten. However, the into oblivion. However, some analysts argue leading regional organization, the Organization of that for the second half of the twentieth American States, and its Inter-American System century regionalism persisted through its of Human Rights, is often remembered as the institutional development with the Organ- institutional result of more than a century of Latin ization of American States (OAS) and its American regionalist thought in international law. Inter-American System of Human Rights (IASHR) being the outcome of more than a Latin American international law (LAIL) was century of regionalist practice and thinking a regionalist approach to international law about international law (Caicedo Castilla that was most influential during the first 1970; Puig 1984; Sepúlveda 1960). In 154 9780415418768_4_010.qxd 26/11/2008 02:37PM Page 155

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addition, LAIL has also been suggested to be of the criollo (or creole) elite, the most a pre-TWAIL (Third World Approaches to powerful of these groups, continued on to International Law) as a form of resistance or the post-independence period and early questioning the universalism of international twentieth century. law (Wa Mutua 2000) from a state-centered The term criollo (from the Latin creare perspective.2 – to create) was first used in the sixteenth century to designate black slaves born in the Americas (as opposed to bozales or African Creole legal consciousness born slaves) (Lavalle 1993). By the seventeenth century it had become a pejorative term that In sum, though LAIL has often been presented was applied by the Spanish conquerors to a through a history of sources (treaties and person born in America of European heritage customary law, principles and doctrines) or but suspicious of being miscegenated with the institutions, its existence is constituted and Indian and/or black population. Nonetheless, advocated by the writings and practice of creoles shared a hierarchical superiority and a century of Latin American internation- legal equality with the Spaniards as part of alists. Therefore, this article is focused on an the “Republic of the Spanish,” a jurisdic- author-based interpretation of LAIL rather tion which also included the castas (mixed than on trying to define its legal content. One peoples) and free blacks at a lower level.6 These unifying way of reading LAIL authors is categories were constituted in legal terms through what we have previously argued as through separate jurisdictions, privileges and their participation in a “creole legal con- restrictions.7 Therefore, racial stratification was sciousness.”3 By a creole legal consciousness, based more on social, political, and adminis- we mean a broad set of problems, strategies, trative categories than on strictly biological uses and ideas about the law that are shared ones. Thus, despite their status as a local among a group of Latin American lawyers elite, continuous claims to whiteness, and in the post-independence era.4 We do not legal superiority over the Indian, castas, free include specific legal rules or theories about blacks, and slaves, creoles were perceived by the law as part of this consciousness but rather the Spanish as impure Europeans (Mazzotti a wide acceptance of a regional identity of the 2000) and were seldom allowed to hold the law, both in its American particularism as in most important administrative posts8 or have its European roots, an adjudication practice access to privileges reserved for the Spanish that allowed for the reception and appro- born. priation of foreign ideas and theories about This differentiation between the European- the law as part of a new application to local born Spaniards and Spanish Americans led the needs or interests, and a continuous “will to creole letrados9 – a name given to lawyers but civilization.” also to those who were well cultivated in the Creole legal consciousness has its origins in humanities – to gradually construct the idea the hierarchical social and legal structure of of an American patria or homeland expressed 300 years of Spanish rule in the Americas. not only in literature and the arts but also Through its legislation, the colonial gov- in social, political and legal manifestations. ernment categorized people into different Indeed, during the first two centuries of the groups which gradually developed their own colonial era, when Spanish law (mainly the sense of identity and recognition. Although Siete Partidas, a thirteenth-century Castilian these groups legally disappeared when the compilation based on Roman and canon newly independent nations were founded in law)10 was not fully applicable to local situ- the nineteenth century, ostensibly many of the ations, creoles developed a form of inter- characteristic ways of their habitus,5 especially pretation and adjudication which took local 155 9780415418768_4_010.qxd 26/11/2008 02:37PM Page 156

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laws (called fueros or municipal charters) into claims to nationalism and individual equality account in a process that became known as among the citizens of the new republics. derecho vulgar (popular justice) (Cutter 1999). Perhaps a well-known phrase from independ- However, by the seventeenth century the ence leader Simón Bolivar’s 1815 “Jamaica increasingly complex mixture of peoples Letter” best illustrates this double bind: “But with their new social stratifications, distance we . . . who are not Indians nor Europeans, from the metropolis, extensive territory, but a mixture of the legitimate owners of the different forms of land management and country and the usurping Spaniards, ...we, economic exploitation posed many new being Americans by birth and with rights legal issues that were not foreseeable by this equal to those of Europe, have to dispute these method. Such particularisms soon became rights with the [natives] of this country, and evident to the Crown and in 1614 New [defend] ourselves against the ...invaders. World distinctiveness was recognized offici- Thus, we find ourselves in the most extra- ally through a royal order that ruled that only ordinary and complicated predicament.”14 laws specifically issued for the Indies were Indeed, the newly independent creoles had applicable (Cutter 1999). The laws, together an ambiguous position: on the one hand, the with the form of applied justice, became creoles’ right to belong to the metropolitan known as derecho indiano (law and justice of center as descendants of Europeans, with, on the Indies) where judicial decisions were the other hand, the need to be recognized as based on the judge’s ample discretion – independent and distinct from Europe. known as arbitrio judicial ( judicial will) – over In addition, a new element came into play the use of written law, doctrina (commentaries in post-independence creole consciousness: of Castilian or foreign jurists on Roman, canon the “will to civilization”15 or desire to be and royal law), custom (as local usage and long- part of the community of civilized nations. standing practice) and equidad (or fairness, as “Civilization” was a word that came into use defined by the satisfaction of the aggrieved during the French Revolution as the idea of party together with the well-being and progress and the perfectibility of humanity.16 harmony of the community).11 This case-by- In its plural form, it meant the existence of case decision making, referred to as casuismo various social groups in development, whose (casuistry), was the basis of an extremely flex- unity and perfection were synthesized only in ible system of legal administration that was European civilization. Therefore, barbarism, its considered to be a distinctively American form opposite, was outside of Europe (Elias 1994). of justice, and therefore called derecho criollo The civilizing discourse was appropriated by (creole law or justice).12 Thus, the imperial the newly independent elites who appealed structure (the universal) was challenged by the to their European heritage in order to avoid creole literati as they strategically adapted both being excluded from the rights and entitle- the meaning and the use of the external law ments assigned (by Europe) to other mem- to local circumstances, giving it an identity bers of the so-called “community of civilized of place, a sense of regional uniqueness while nations.” But from their colonial tradition of at the same time their flexibility was essen- autonomy and proud identity, independent tial to maintaining the colonial enterprise and creoles did not view themselves as outside of the centrality of a European legal heritage.13 civilization, as barbarians, but rather as part After the independence of the Spanish of their national (and regional) mission to do American colonies, the former creole elite con- everything necessary to complete the civiliza- tinued to identify themselves as superior to tion that the Spanish colonizers had brought the rest of the national populations but still with them but left lacking. More than a con- linked by a regional identity which in the sequence of colonization, the creoles’ will to 1850s was coined as Latin America despite the civilizationwas self-imposed, one of the factors 156 9780415418768_4_010.qxd 26/11/2008 02:37PM Page 157

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they knew to be essential to the recognition Europe or the United States, but rather were of their new nations as sovereign states. also participants and producers of a transnational legal consciousness that they re-created and transformed with their regional interests Nineteenth-century foundational in mind and directed back as acceptable to the authors metropolitan center. In the nineteenth century, criollo lawyers and intellectuals received In the memory of twentieth century LAIL and articulated international law as part of their advocates, the nineteenth century is histor- nation-building projects and their search for ically important because it marks the end recognition and legitimate participation of the of more than 300 years of Spanish colonial new states in the “community of civilized rule and the beginnings of independence.17 nations.” Nationally, it is the era of different models The most representative pre-LAIL authors of statehood and state consolidation, civil wars, are Andrés Bello (1781–1865) and Carlos uti possidetis iuris, caudillismo, the struggle Calvo (1822–1906). Bello participates in over local interpretations of liberalism, the what has been called the “early professional” appropriation of indigenous lands, and the or pre-classical period of international law and abolition of slavery. Internationally, the nine- Calvo is part of the professional or classical teenth century marks the entrance of more period.18 Bello published the first international than 20 new republics into a “community of law textbook in the Americas in 1832, titled civilized nations,” until then only understood Principios del Derecho de Gentes where he as reserved for European states. For LAIL, it acknowledged the most recognized Euro- is the century of the Monroe Doctrine, the pean authors of his time as well as the U.S. American and Pan-American Congresses, jurisprudence on maritime law and prize U.S. imperialism, European interventions, courts of Justice Story and the writings on and the transfer of the Anglo (England and international law of Chancellor Kent, Joseph the U.S.) civilizational model to the Latin Chitty, and Henry Wheaton. In fact, his book (France) one, and therefore the shift of anticipated Henry Wheaton’s Elements of identities from “Americans” during the first International Law by 4 years. Bello wrote his half of the nineteenth century to “Latin textbook as a treatise that condensed the most Americans” in the second half. The nineteenth important works of the time: a codifica- century for Latin American internationalists tion of principles from which he anticipated is a long and turbulent one, remembered for legal outcomes could be deduced. Although its stories both of foundational achievements Bello’s sources were in several languages, he and for the ones of oppression and resistance. translated what was relevant into Spanish and Nineteenth-century Latin American edited them and rewrote what he considered writers of international law thus part from a appropriate to the purpose of teaching inter- collective understanding of their particular national law to the law students of the newly moment of independence. Although Henry independent states. In his treatise, Bello pur- Wheaton (1845), the renowned U.S. inter- posely incorporated references to the new states national legal scholar of the nineteenth as undeniable members of the community of century wrote in 1845 that European inter- civilized nations and participants in the mak- national law was simply extended by the acces- ing of international law. He went as far as sion of the “new American nations that to make commentaries in the footnotes that have sprung from the European stock,” a close questioned principles upheld by the foreign reading of the precursors of LAIL shows that sources he embraced in the mainstream of the they were not simply following or copying text.19 Bello justified this as the right that the the international law that was produced in peoples of the new states had to access to an 157 9780415418768_4_010.qxd 26/11/2008 02:37PM Page 158

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intellectual tradition of which they were dictionaries of international law, presented naturally part of: almost all international legal issues in a his- toricist narrative, and proposed a distinction Our Republic is certainly just been born to between public and private international the political world; but it is also true that law. Although he also wrote in Spanish, since the moment of her emancipation she Calvo published most of his work in French, can access all the . . . political and legislative the language of international diplomacy and wisdom that Europe and North America culture at that time, so that he would reach have added to this opulent {intellectual} a broader European audience. He compiled heritage. All the peoples that have dis- treatises and other documents dating back to tinguished themselves on the world scene before us, have worked for us ...The the period of conquest to present positive independence we acquired has put us in sources of international law that originated immediate contact with the more advanced in Spanish America as well as a manual and and cultured nations; nations rich in dictionary of international law which were later knowledge, of which we can participate just translated and used by French and U.S. by wanting to.20 authors. In a similar move to Bello’s, Calvo inserted the names of several Latin American Thus Bello saw himself as improving on the publicists and the history of the region and recognized writers of international law. He its role in international law into his widely says he wrote the book to give “uniformity” read treatise and dictionary. In fact, Calvo of ideas and of language to the doctrines of is one of the first to adopt the term ‘Latin recognized European and U.S. publicists that America’ as a post-independence effort to were “spread out and confusing.” His own defend the region’s interest. Calvo (1862) was text is self-described as “comprehensive” and concerned that Latin American nations were representative of “the current state of the sci- not taken seriously as active participants of ence” claiming to have put into “one single international law because of the “absolute body all of the elementary and indispensable ignorance in Europe of our state of civiliza- notions” of international law by incorporat- tion and progress.”21 Stressing that the negat- ing only what is “useful,” “substantial,” and ive judgments of Europeans were not based “educational.” Nonetheless, he also incorpor- on facts, Calvo (1862) pointed to the obliga- ated his own critique of the principle of tion of “any American” to demonstrate the sovereign inequality among nations as well truth of the continents progress in a way “that as repositioned and placed forth principles will not leave any doubt in the spirit of the or issues that he felt were important to the European reader.” American nations such as the need to codify Even Bello’s seemingly systematic treatise international law, the principle of non- of international law is full of references to intervention, the use of arbitration as a form the Latin American context of the time. of resolving conflicts among states, the Bello’s particular role as the region’s foremost status of combatants in civil wars, the rights nation builder does much to explain why he of nationals and foreigners, and the most- gave such attention to international law. In favored nation status for trade among fact, many of his disputes with European Spanish American nations, all of which were legal scholars are based on an intense relation later held to be unique Latin American con- with events that happened in Latin America. tributions to international law. The same is true of Calvo. Both intertwined Later in the same century, Carlos Calvo, regional events with those of Anglo and who had studied international law through European international histories as a way to Bello’s book, made an effort to acknowledge include their view of a corrective, more the field as scientific by writing manuals and balanced account of the Latin American 158 9780415418768_4_010.qxd 26/11/2008 02:37PM Page 159

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nations’ participation in the further devel- Pratique (Theoretical and Practical International opment of international law, guided by a Law) Amancio Alcorta, an Argentine inter- complex dialectical relationship between nationalist, wrote an article complaining globality and locality, international prestigious that Calvo’s work did not mention the pos- authorities and local demands and contesta- sibility of a LAIL (Alcorta 1883). Calvo tions. Contrariwise, the texts’ structure shows responded that though he had a regional that these early Latin American scholars were approach to his writings, LAIL as such did not very familiar with the contemporary canon exist because international law should be of international law and participated in a com- about general principles and not about par- mon vocabulary shared by European and ticular problems and LAIL should not be North American writers despite that they are understood as a branch of law because it only not remembered as such or that the memory referred to a particular set of regional prob- of their existence is limited to their particu- lems (Calvo 1883). larity as Latin Americans. Two decades later, however, Alejandro Despite the fact that these pre-LAIL Álvarez,22 a young Chilean internationalist authors did not develop a rejectionist stance argued for a LAIL in a paper titled “Origen of international law their writings could y desarrollo del derecho internacional also be read as presenting the perspective of americano” (“Origin and development of former colonial subjects that questioned the American international law”) presented at the balance of power in the world but at the same third Latin American Scientific Congress time had immense faith in their capacity to in Rio de Janeiro.23 Álvarez (1910) began to participate in the adaptation of international claim for himself a foundational role as sole law to accept the needs of the newly inde- theorizer of LAIL: pendent states. This does not mean that Bello and Calvo, as other authors of their In spite of the obvious existence of this law time, were aware of their own colonial atti- . . . it has not been studied nor even clearly tudes towards the subaltern subjects of their stated by the publicists either of Europe new states or that they did not embrace the or of America . . . The only publicist who seems to have grasped the idea of the exist- European move of restricting the right to ence of the matters constitutive of [an sovereignty of those considered “uncivil- American International Law] is Alcorta24 but ized” during the colonial enterprise of the he never expressly affirmed its existence, nor nineteenth century. Indeed, the develop- indicated its foundations, nor the subjects ment of a doctrine of state sovereignty was that constitute it.25 one of the principal concerns of nineteenth- century Latin American internationalists but Although Álvarez was later followed by sev- in accordance with what benefitted their eral other internationalists, the debate on the own particular situation in the world with existence or not of a LAIL continued well into respect to the issues of recognition, the prin- the twentieth century. Indeed, a Brazilian ciple of non-intervention, the notion of diplomat and professor of international law, regional unity and the limitation of borders Manoel Álvaro de Souza Sá Vianna (1860– among neighboring countries. 1924) published a book titled De la non Existence d’un Droit International Americain,26 which was presented at the Fifth Latin Twentieth-century rise and American Scientific Congress of 1912 in an fall of LAIL effort to challenge Álvarez’s (1905, 1907b, 1909a, 1910) earlier proposals for a general Soon after the publication of Carlos Calvo’s recognition of the existence of a LAIL.27 Sá book Le Droit International Théorique et Vianna’s intention was to put an end to the 159 9780415418768_4_010.qxd 26/11/2008 02:37PM Page 160

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notion of a regional international law, argu- European writers. Álvarez critiqued European ing that problems common to the countries internationalists for not taking into account of Latin America or to the American contin- the social, economic and technological ent did not and could not constitute a basis transformations of the nineteenth century. He for an autonomous or separate sphere of also criticized them for continuing with the international law. For Sá Vianna international same conception of the nature and extension law was based on principles, laws, and rules of the rules of international law and for observed by the international society and not giving excessive credence to sovereignty and on common historical experiences among a to the universality of all principles. Thus group of countries, as Álvarez had argued. Álvarez proposed that by studying the states Nonetheless, Álvarez continued to publicly of the Americas in their particular situations defend in his writings and oral presentations and history of institutions, it would be pos- the need to recognize a regional version of sible to proclaim that there were different international law.28 In addition, several other or contrary principles from those of the Latin American internationalists followed European states, and that they would reveal Álvarez and published books and articles a different character of the rules of inter- on the characteristics, history, proposals and national law. future of LAIL during the first half of the twen- Third, Álvarez was able to access and tieth century.29 The proposal of a LAIL, as master the centers of academic and institu- well as the debates about its existence, bring tional production of international law in forth the underlying story of a regional sens- order to promote his work in French and ibility and it troubles the common assump- English, languages that were more broadly tion that the discourse of international read. When the U.S. began to promote the law went unchallenged when received and Pan-American Congresses he changed his first appropriated by Latin American nations text titled “Latin America and international peripheral to European and U.S. economic law” to “American international law” and and political dominance.30 figured the U.S. as an important hegemon Although Álvarez broke away from the clas- in the region, despite the charges of U.S. im- sical period and became modern by embrac- perialism by several of his colleagues. From ing and promoting social legal thought in 1916 to 1918 he spoke at nearly 30 U.S. uni- international law, he still inhabited a creole versities in order to promote the unification legal consciousness reflected in three areas in of what he called the Anglo-American and which Álvarez worked: in his own reading Latin American schools of international law of local events and texts, in the production into a single Pan-American School. In Latin of a theory of LAIL and in the project of America he promoted his theory in the institutionalization of a regional law. First, Scientific Congresses and when he was chal- from 1905 to 1910 Álvarez wrote extensively lenged by Sá Vianna and others he adapted for the recognition of a LAIL. His historical by changing his titles to “American problems exposition referred to the regional treaties in international law” or “International law and conventions, the Latin American and . . . from the point of view of the American Pan American conferences, and Scientific continent.” He also managed to promote a Congresses that occurred throughout the motion in the First Panamerican Scientific nineteenth century. He claimed that all these Congress in which all the discussions of the events revealed the particular character of prob- sciences (including political science and legal lems sui generi’s, which were the basis of a LAIL science) would be done from “an American that European publicists did not account for. point of view.” Álvarez was also concerned Second, Álvarez claimed to be the first to about institution building. He co-founded the theorize LAIL in an effort not to follow American Institute of International Law in 160 9780415418768_4_010.qxd 26/11/2008 02:37PM Page 161

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1912 and its French counterpart in 1919. these regionalist perspectives (as well as On one side of the ocean, he promoted the fissures in their homogeneity) every now the consolidation of an American juridical and then resuscitate in the political discourse conscience, on the other, he promoted an of Latin American leaders, from grassroots international juridical conscience. Álvarez advocates to presidents. In addition, the lead- preached his project of codification both at ing regional organization, the Organization the American and international levels, man- of American States, and its Inter-American aging to get conferences and discussions System of Human Rights, is often remem- started at each. bered as the institutional result of more than In sum, it would not be difficult to prove a century of Latin American regionalist that Álvarez was making generalizations thought in international law. that only apply to his specific experience as member of a particular male, educated, “white” elite group that during the colonial Notes era was denominated as criollo. It is obvious * This chapter is drawn in part from the following: that Álvarez essentialized characteristics from “Noted for Dissent: the International Life of nations that have different ethnical and his- Alejandro Alvarez”, Special edition of the torical compositions inside of their national Leiden Journal of International Law, Vol. 19, boundaries. He so adamantly believed in No. 4, Cambridge University Press 2006. these claims that he had presented them (and “Between Civilization and Barbarism: Creole Interventions in International Law”, special more) in previous texts and would continue issue, International Law and the Third World. Guest to do so for the next 50 years (Álvarez 1905, editors Richard Falk, Balakrishnan Rajagopal 1907a, 1907b, 1909a, 1909b, 1910, 1911a, and Jaqueline Stevens in Third World Quarterly, 1911b, 1917). Álvarez argued such a position Vol. 27, No. 4, Taylor & Francis 2006. unabashedly and with utmost convince- “Creole Consciousness and International Law in Nineteenth Century Latin America” ment because he was thinking, writing and in International Law and its Others, edited by speaking from his particular creole habitus and Anne Orford, Cambridge University Press arguing the need for a regional perspective 2006. on international law from a creole legal 1 For other recent readings on LAIL see Becker consciousness. Lorca 2006; Gros Espiell 2001. 2 LAIL scholarship like TWAIL I scholarship (or the first wave of TWAIL scholars of the 1960s and 1970s) was state centered and believed Conclusion in the future of the United Nations as the institutional embodiment of the development A regional consciousness of international of international law. 3 I have developed the idea of a creole legal law is evident in the representative works of consciousness previously in Obregón 2002: 200, Andrés Bello, Carlos Calvo and other Latin 2006. Americans during the nineteenth century, 4 Although there have been myriad legal but it wasn’t until the beginning of the consciousness studies since the 1980s my twentieth century that a “Latin American definition is based on Duncan Kennedy’s as a “particular form of consciousness that charac- international law” (LAIL) was theorized and terizes the legal profession as a social group, at promoted by its main proponent Alejandro a particular moment. The main peculiarity of Álvarez. Many other internationalists fol- this consciousness is that it contains a vast num- lowed Álvarez in defining and promoting ber of legal rules, arguments, and theories, a a LAIL, but after the 1960s Latin American great deal of information about the institutional workings of the legal process and the constella- regionalist perspectives in international law tion of ideals and goals current in the profes- became scarce and thus gradually irrelevant sion at a given moment.” This definition is part and forgotten. However, the strength of of Kennedy’s manuscript of 1975 reformatted 161 9780415418768_4_010.qxd 26/11/2008 02:37PM Page 162

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in 1998 (Kennedy (1998 [1975], first chapter the amount of visible (skin color), perceived published as Kennedy 1980)). In a more recent (education, language, religion, culture) and article, Kennedy clarifies his borrowing from acquired (through political or economic the linguist Ferdinand de Saussure by explain- influence) European “blood.” Edicts and other ing that a legal consciousness is “understood colonial legislation determined the limits of the as a vocabulary of concepts and typical argu- castas in accessing certain jobs, holding public ments, as a langue, or language,” which con- office or receiving public education. A mixed tain an infinity of laws or “phrases” that can person could ascend beyond his skin color by be formulated in the conceptual vocabulary adopting as many European traits as possible of that consciousness as “parole,” or speech. (see Jackson 1999; Seed 1982). Therefore to identify one writer as participat- 7 Precisely because of the creoles’ characteristic ing of a consciousness (i.e. creole) does not mean ambiguity some scholars have suggested the term that others of the same consciousness (langue) “agency” rather than “subject” as a marker of will utter identical forms of speech (parole) their political will within the public sphere. See nonetheless, they participate by combining and José Antonio Mazzotti’s (2000) collection on recombining the general policy “argument or different studies of creole agency and ways in sound bites” of that language. Kennedy has which the category of the criollo was constituted recently revived the concept of legal con- during colonial times. Although creoles in sciousness in a global dimension in Kennedy Spanish America were often portrayed as (2003) and as noted in the “legal history” sec- “white,” it is constraining and misleading to tion of his new web page http://www. describe the creole as a monolithic subject based duncankennedy.net. The idea of argument bites only on a racial or social category. Other is more extensively explained in Kennedy elements such as honor, purity of blood, (1994b). For an analysis of the legal con- legitimacy of birth, social status, economic sciousness literature in the law and society and political power were more significant scholarship see the articles by García-Villegas when defining differences that were legally, (2003) and Silbey (2005). institutionally, and socially enforced. It is 5 I am referring to Pierre Bourdieu’s notion more appropriate to say that he (the creole is of habitus, as an “habitual, patterned ways of undoubtedly a male subject) represented cer- understanding, judging, and acting which tain positions taken in the public sphere. In this arise from our particular position as members sense, it is easier to understand why “honor” of one or several social ‘fields,’ and from our rather than “race” would be important to a particular trajectory in the social structure person positioning himself or being posi- (e.g. whether our group is emerging or tioned as creole (see for example, Uribe Urán declining; whether our own position within it 2000). is becoming stronger or weaker). The notion 8 Such as those of viceroys, bishops or oidores. asserts that different conditions of existence Oidores were judges who were part of one of – different educational backgrounds, social the audiencias: “a governmental body with statuses, professions, and regions – all give rise administrative and judicial functions, usually to forms of habitus characterized by internal the highest level appellate body located in a resemblance within the group (indeed, they are geographic area governed by a viceroy or other important factors which help it to know itself royal official magistrates” (Mirow 2001). as a group), and simultaneously by percept- 9 Letrados has been translated as “lettered men” ible distinction from the habitus of differing or literati (Rojas 2001). Ángel Rama in The groups. Beyond all the undoubted variations Lettered City describes the literati as “the in the behaviours of individuals, habitus is what restricted group of intellectual workers who gives the groups they compose consistency. It learned the mechanisms and vicissitudes of insti- is what tends to cause the group’s practices and tutionalized power and learned, too, how to its sense of identity to remain stable over time. make irreplaceable institutions of themselves It is a strong agent of the group’s own self- . . . their services in the manipulation of recognition and self-reproduction” [translator’s symbolic languages were indispensable . . . note in Bourdieu (1987)]. servants of power, in one sense, the letrados 6 As African slavery was introduced into the became masters of power, in another” (Rama Spanish colonies, distinctions grew in import- 1996). ance in multiple and ever increasingly com- 10 These codes or compilations are the plex ways. The colonial system of castas (castes) Ordenamiento de Alcalá (1348) restated in the ranked individuals hierarchically according to Leyes de Toro (1505), Nueva Recopilación

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de Castilla (1567) and the Novísima Recop- different moments of legal consciousness. ilación de Castilla (1805). Martti Koskenniemi uses the term “early 11 I have taken these categories as conveniently professional,” or “early classical” to describe simplified by Cutter (1999). international law publicists for the first half of 12 Even today, when contemporary legal issues the nineteenth century, roughly for the same are discussed based on local circumstances the period that Duncan Kennedy uses the term pre- charge is of casuism or of giving a creole inter- classical to describe legal consciousness in the pretation to the law. Diego López Medina United States. The classical or professional (2004) has done much to give new value period for both authors refers to the late nine- to these Latin American transformations or teenth century, and the modern moment transmutations of what he calls a “transnational refers to the twentieth century (see Kennedy legal theory” coming from “prestigious sites of 1998 [1975]; Koskenniemi 1989). However, production” by showing them as creative and I, like Koskenniemi or Kennedy, do not use often brilliant local appropriations. I would these terms to present a progress narrative of add that these transformations could be read legal consciousness. as part of a modern creole legal consciousness. 19 Bello’s work is better explained in the chap- In fact, López’s book may be read in the same ter “Andrés Bello’s principles of international tradition: López is appropriating (and crit- law” in Obregón (2002) or in Obregón (2006). icizing) European- and Unitedstatesean- 20 The original quote in Spanish is taken from produced theory to propose a novel reading Hanisch Espíndola (1983). inscribed in the region, which would not have 21 Calvo’s work is better analyzed in the chapter been possible from a monologist view from “Carlos Calvo’s theoretical and practical the center. international law” in Obregón (2002). 13 Joseph Lund (2001: 54–90) describes this 22 For a recent and extensive analysis of as typical of Latin American exceptionalist Alvarez’s oeuvre, see Several 2006. discourse: that it proclaims its difference and 23 The paper was later modified and published distance but at the same time it only is able to as an article in Álvarez 1907b. In the revised legitimize itself through a Eurocentric point of edition, he enlarged the geographic domain departure. to include the United States, therefore chang- 14 As translated in Álvarez 1924. ing the name from “Latin American” to 15 I have borrowed the concept of the “will to “American” (as in the continent). civilization” as described by Cristina Rojas as 24 Amancio Alcorta (1883) complained that “a place of [violent] encounter between the Carlos Calvo’s work on international law did colonial past and the imagined future, as a pass- not mention the possibility of an American age between barbarism and civilization” (Rojas international law (derecho internacional americano). 2001). I also had in mind Walter Benjamin’s Calvo (1883: 629–31) responded by saying statement: “There is no document of civiliza- that there was no American international law tion which is not at the same time a document because international law treats principles and of barbarism” (Benjamin 1973: 256). not problems. This debate initiated a series 16 Civilization was understood as a “universal fact,” of discussions on the existence or not of an and, with it, the trust that law and institutions American international law. Among others who would be able to mold the human character. cite this debate, see Yepes 1938 and Jacobini The word “civilization” originated in the use 1954. For a contemporary analysis of these of the French words civilité (civility) and poli debates, see Becker Lorca 2006. (polished, refined, courteous, to emit prudent 25 Bello and Calvo also felt that they were being laws). For more about the etymology of the original from an American point of view word see Goberna Falque (1999), Starobinski though they did not promote the idea of a (1993), Lochore (1935), Febvre et al. (1930). regional version of international law. None- 17 Depending on what countries are included in theless, they, like Alvarez, used rhetorical the imagery of “Latin America,” independence strategies to place their work at the center dates can range from as early as 1791 for Haiti of production of international law. Doris or as late as 1898 for Cuba. If only the con- Sommer (1999) has masterfully shown how tinental former Spanish colonies are included minority writers often use “rhetorics of par- in the regional reference these dates range ticularism” in order to engage admiration roughly from 1810 to 1825. while at the same time resist control. 18 Although these classifications are rough 26 “[N]’existe pas, et ne peut exister un Droit sketches of a time period they help to describe International Latino-Américain . . . ni un

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Droit International Américain” (Sá Vianna (International Law of the Future) a book which 1912). All translations are mine unless other- proposed to renovate a failed international wise stated. law backed by the moral strength of a Latin 27 The usage of the term “Latin America” only American perspective. During the interwar began in the mid-nineteenth century but be- period, Álvarez also published several papers came more commonly used in the twentieth. and articles on an American need to codify Most writers refer to American as pertaining international law. After the Second World to the former Spanish colonies or to the entire War, Álvarez continued his belief that it was continent but not solely to the United States. necessary to place the American continent’s Sá Vianna makes the distinction of Latin role at the forefront of the drastically changed American or American to clarify that he is refer- international environment and expressed ring to an international law pertaining to the these views in several of his dissenting opin- former Spanish colonies and to a continental ions as a judge on the International Court of international law. Throughout this work, I will Justice. comply with a similar usage and make the dis- 29 Álvarez 1923; American Institute of Inter- tinction of Anglo American or U.S. when I national Law, Pan American Union and Scott refer to someone or something pertaining to 1925; Arroyo Rivera 1952; Baez 1936; Castro the United States. Ramirez 1915; Checa Drouet 1936; Cock 28 In 1909 Álvarez published two texts in Arango 1948; Henriquez 1948; Henriquez English: “American problems in international Vergez 1966; Labra 1912; Mackenzie 1955; law” and “Latin America and international Nielsen Reyes 1934; Oro Maini 1951; Orrico law” in the American Journal of International Law. Esteves 1956; Paredes 1924; Planas Suarez 1924; In 1910 he published a book titled Le Droit Puig 1952; Quesada 1916; Restelli 1912; International Américain: Son Fondement, sa Rueda Villareal 1948; Sanchez I Sanchez Nature: d’apres l’Histoire Diplomatique des États 1941; Sanchez I Sanchez 1958; Scott 1930; du nouveau Monde et leur Vie Politique et Uriarte 1915; Yepes 1930; Yepes 1952; Économique, which he presented at the Fourth Zárate 1957. Panamerican Conference held in Buenos 30 Latin America has been traditionally identiﬁed Aires, Argentina. A year later, still before the by comparative legal scholars as a place where First World War, Álvarez released a book on legal imports are borrowed and well received. the Monroe Doctrine and its impact on the See Esquirol and López Medina’s S.J.D. dis- American nations. After the First World War, sertations (Esquirol 2001; López Medina he published Le Droit International de L’Avenir 2001, 2004).

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11 Religion and international law: an analytical survey of the relationship

Mashood Baderin

This chapter provides a general but contextualized system that purports to be secular, is likely and critical analytical survey of the relationship to be controversial and complex.” On the between religion and international law from four other hand, religion and law are identical in main perspectives: historical, theoretical, empirical some other ways. Generally, both religion and doctrinal. The historical perspective gener- and law are important social phenomena that ally analyzes how religion has featured in the relate to fundamental social issues in human evolution of international law over time and its society, which has often stimulated “passion- consequences for modern international law. The ate disagreement about their proper content theoretical perspective analyzes the main theoreti- and functions”2 in that regard ( Jamar 2001: cal viewpoints on whether or not religion ought to 609). Also, both religion and law can be polit- have any normative role in international law, while icized and manipulated by the elite to achieve the empirical and doctrinal perspectives examine the particular intended objectives, which also practical and legal parameters of the relationship adds to the complexity and controversy in their respectively. relationship. Owing to its complexity, the relationship between religion and international law can be analyzed from different perspectives Introduction depending on one’s objective. As a chapter in a handbook on international Religion1 has played, and continues to play, law, this essay aims at providing a general a signiﬁcant role in the evolution of inter- but contextualized analytical survey of the national law, even though the relationship relationship from four main perspectives: between the two is often perceived to be com- historical, theoretical, empirical and doctrinal. plex and controversial for different reasons. These four perspectives are not strictly mutu- On the one hand, the controversy surround- ally exclusive, but are intrinsically interrelated ing the relationship may be attributed to the as, for example, the theoretical perspective apparent differences in the nature of religion must, as a matter of necessity, not only be his- (sacred) and that of international law (secu- torically aware, but empirically meaningful and lar). Carolyn Evans (2005: 3) has noted in that also doctrinally relevant. The historical per- regard that: “The place of religion in the spective will generally analyze how religion international legal system, or indeed any legal has featured in the evolution of international 165 9780415418768_4_011.qxd 26/11/2008 02:37PM Page 166

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law over time and its consequences for in that regard that the epoch of international modern international law. The theoretical law from the thirteenth to the eighteenth cen- perspective will analyze the main theoretical turies was an epoch of “international law of viewpoints on whether or not religion ought Christianity,” with the law deeply rooted to have any normative role in international in religious or divine law. He noted that: law. The empirical and doctrinal perspectives “Christianity formed the major intellectual would examine the practical levels of the foundation of legal order for the entire relationship and explore the legal scope of epoch,” which, inter alia, “brought Europe the relationship respectively. It is necessary to together, not only into an intellectual-religious state that the term “religion” is used here in unit, but also under the political idea of res a very general sense, but reference would be publica Christiana,” a term he identified as still made to specific religions where necessary to “used in treaties as late as the 18th Century” illustrate and provide context to relevant (Steiger 2001: 184). arguments. Writing from an Islamic perspective, Muhammad Hamidullah (1977: vii, emphasis in original text) had earlier made a Historical perspective similar observation in 1941, stating that what passed as international law in Europe up to The history of international law is usually the mid-nineteenth century was “a mere delineated by the Peace of Westphalia, which public law of Christian nations” and noted that is often depicted as the beginnings of modern it was “in 1856 that for the first time a non- international law and international relations, Christian nation, Turkey, was considered fit and thus conventionally divided into the pre- to benefit from the European Public Law of Westphalian and post-Westphalian periods. Nations, and this was the true beginning in This traditional division of the history of inter- internationalizing the public law of Christian national law is essentially Euro-Christian in nations.” To highlight however that the nature and has been described as being “to a concept of international law was not limited certain extent, old fashioned” (see Steiger 2001: to Europe in those times, Hamidullah (1977: 180). The important point, nevertheless, is that vii) further observed notably that international religion has played a significant role in both law existed long before then within Islamic historical periods. law, based principally on Islamic religious Before the Peace of Westphalia in 1648, sources. There have also been observations religion constituted a fundamental basis for by other scholars highlighting the existence the normative rules regulating the relation- in other religions of relevant rules for the ship between the political powers of that regulation of the “interstate” relationships period in different parts of the world (see between political powers in the form of law e.g. Bantekas 2007: 115; Bederman 2004). For of nations prior to the Peace of Westphalia example, while the earlier writings on rules in 1648 (see, e.g. Jain 2003; Weeramantry of the law of nations by jurists in Europe relied 2004: 17–30). heavily on Judeo-Christian religious sources, Over time after Westphalia, emphasis on similar writings by jurists in the Muslim the substantive role and influence of religion world also relied mainly on Islamic religious in international law declined gradually in sources (see, e.g. Khadduri 1966). After Europe, until modern international law Westphalia, international law materialized became perceived strictly as a secular positivist as an essentially secular and European con- legal system with its foundation regarded struct but remained very much influenced as lying “firmly in the development of by Christian religious dictates generally.3 Western culture and political organization” Heinhard Steiger (2001: 183) has observed (Bederman 2001a; Brierly 1963: 1; Shaw 166 9780415418768_4_011.qxd 26/11/2008 02:37PM Page 167

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2003: 13–22; Stumpf 2005). Carolyn Evans Haynes 2005; Petito and Hatzopoulos 2003),5 (2005: 2) refers notably to Mark Janis’ obser- particularly after the 1979 Islamic Revolution vation in that regard that “by 1905, when in Iran and the al-Qaeda terrorist attack of Oppenheim published his classic International September 11, 2001, both of which invoked Law, religion no longer played the important Islamic religious sources as their basis of role that it had in earlier texts: ‘rather reli- action and both of which have had import- gion was part of the history of international ant impacts on international law respectively. law, something that once had mattered’ ” While this has placed Islam in the forefront (see also Janis 2004: 138; Kennedy 2004: of the contemporary discourse on the rela- 145–53). tionship between religion and international The adoption of the United Nations (UN) law, as will be reflected in the context of this Charter in 1945 can be described as the chapter, it is by no means the only religion climax in the formal substantive secularization relevant in the discourse. For example, and positivization of modern international Richard Falk (2002: 4–5) has referred to the law, as none of its provisions refers directly Falun Gong movement in China and the cur- to religion as a legal or normative source rent political leverage of the religious right of international law, except for its provisions in the United States of America as relevant on prohibition of non-discrimination on examples of the current religious dynamics in grounds of religion.4 Christoph Stumpf different parts of the world impacting on the (2005: 70) has, however, observed that this relationship between religion and modern secularization of international law has Euro- international relations and international law. pean traditional underpinnings, and that this In the face of diverse contemporary creates a source of “potential conflict in the international challenges, especially regarding relationship between secularized legal cultures issues of international peace and security, some which are customarily labeled ‘Western’, international law scholars and jurists have pro- and other legal cultures that wish to uphold posed a general return to relevant principles their religious root.” Stumpf’s observation is of natural law as well as religious and cultural reflective of the fact that the world is today values to find ways of expanding the scope constituted of states that operate different of the principles of modern international legal cultures, with religion still playing a very law to meet those challenges (see, e.g. Falk visible role in the public sphere and legal 2001; Meron 2000: 278; Weeramantry culture of many states, particularly Muslim 2004). Also, many other commentators have, states. In the words of Ilias Bantekas (2007: especially from an Islamic perspective, speci- 116): “To be certain, the world is divided into fically challenged what they consider to be the secular and non-secular countries.” That, in continued European and Christian under- essence, continues to have significant impact pinnings and influences on modern inter- on the relationship between religion and national law and called for an appreciation international law at their different levels of of the necessary inputs that other religions, interaction. especially Islam, can offer to the develop- Thus, despite the substantive secularization ment of modern international law (see, e.g. of modern international law, the discourse on Abou-el-Wafa 2005; Baderin 2008; Shihata the relationship between religion and inter- 1962). Thus, while Christianity had played national law is no longer merely historic- an almost unilateral role in the historical ally relevant, i.e. “something that once had development of modern international law, mattered” (Evans 2005: 2) but has become, other religions now tend to be asserting their in the last few decades, relatively more sub- respective values as relevant factors to be stantively relevant, i.e. “something that still considered in its continued evolution. This matters” (see, e.g. Hackett 2005: 661; brings us to the examination of the different 167 9780415418768_4_011.qxd 26/11/2008 02:37PM Page 168

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theoretical perspectives around which the particularly ( Jefferson 1802: para. 2). Scott debate on the relationship between religion Thomas (2005: 151) calls this the “West- and international law are being diversely pahlian presumption” in international relations, framed today. “which says religious and cultural pluralism cannot be accommodated in a global multicultural international society, and so must be Theoretical perspectives privatized or nationalized if there is going to be domestic or international order.” It The main theoretical question in the debate advocates a pure theory of international law about the relationship between religion and aimed at ensuring neutrality of the law and international law centers on whether or not devoid of religious and cultural reductionism religion ought to have a normative role in or influence. Thus, the main logic of the modern international law. The complex separationist theory is the “neutrality argu- aspect of the debate is that there are diverse ment,” which asserts that a secular positivist views based on different worldviews and international law is necessary to ensure theoretical arguments. Richard Falk has noted neutrality in the operation and application of in that regard that: “There are those who international law in a manner that ensures view religion as disposed towards extremism, equality and non-discrimination in a multi- even terrorism, as soon as it abandons its cultural and multi-religious global system. modernist role as a matter of private faith and Today, most scholars of international law, belief that should not intrude upon governance particularly from the western world, adopt the . . . [and their] opponents argue the opposite separationist theory and advocate a secular thesis, which contends that without rooting positivist international law that is separated governance in the dictates of religious doc- from any religious persuasion. For example, trine, the result is decadence and impotence” in his critique of the arbitration tribunal’s (Falk 2002: 6–7). There is a third viewpoint reference to Islamic law in the case of Eritrea in between. Thus, the current literature gen- vs. Yemen (Phase Two: Maritime Delimitation),6 erally reflects three main theoretical perspec- Michael Reisman (2000a: 729) argued, inter tives on the subject, which may be classified alia, that: “The essential function of general as the “separationist,” “accommodationist,” international law, as a secular corpus juris, is to and “double-edged” theoretical perspectives provide a common standard and to play a respectively. mediating role between states with different cultures, legal systems, and belief systems,” and that international tribunals “would be well Separationist theory advised to stick to international law” in that The separationist theoretical perspective secular form. A similar point, but in a differ- reflects a secular positivist view of international ent context, was made by Antonio Cassese law, which advocates a strict separation (1988: 78) in his criticism of the Israeli between religion and law and argues that Commission of Enquiry’s reference to rabbinic religion should have no normative role in law in the Sabra and Shatila Inquiry of 1982 international law at all. It draws mainly from and its shunning of international law in that the western, particularly American, liberal regard. Also in his comments on the obser- concept of the separation of church and state, vation of the International Court of Justice which asserts that religion should be a per- (ICJ) in the Case Concerning United States sonal matter restricted to the private sphere Diplomatic and Consular Staff in Tehran (ICJ of individuals, “solely between Man and his Reports 1980: 41) that the traditions of God,” and not allowed into the public Islam has made substantial contribution to the sphere of governance generally and of law principle of the inviolability of the persons of 168 9780415418768_4_011.qxd 26/11/2008 02:37PM Page 169

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diplomatic agents and premises, Ilias Bantekas contention that the argument is itself based (2007: 127) contended that there was no need on certain presumptions that are not really for the court to have made a reference to Islam neutral in themselves. For example, Douglas on this point as there was sufficient substan- Laycock (1990: 994) has referred, in that tive international law the court could have regard, to Michael McConnell’s challenge that relied on in that regard. “neutrality is not a self-defining concept, I submit to the contrary and argue that because properly defined, it is often at odds such complementary references to religious with religious liberty,” while according to law by international tribunals in relevant David Cinotti (2003: 500), “neutrality is an cases, as seen earlier, reflect an accommoda- indeterminate and vacant idea because one may tionist perspective, which can contribute to always counter neutrality-based arguments by the development of customary international reframing the definition of neutrality or by law. It must be emphasized however that this making counterarguments also from neutr- should not extend to the total jettisoning of ality” (see also Ravitch 2004).7 The problem international law for religious principles as with the neutrality argument is that there is appeared to have been the approach of the always the need for establishing an appro- Commission in the Sabra and Shatila Inquiry priate baseline from which deviations from as analyzed by Cassese. He noted that the neutrality can be assessed, the choice of Commission had set aside relevant inter- which, especially in relation to the separationist national law and “referred exclusively to theory, is itself not absolutely neutral (Ahdar moral and religious imperatives” to formulate and Leigh 2005: 90–92; Esbeck 1997: 5; its reasoning on the question of “indirect Ravitch 2004: 493–506). Thus one of the responsibility” in that case (Cassese 1988: 79). main challenges to the separationist theory in Rather than completely sidelining interna- respect of the relationship between religion tional law, our argument here is that relevant and international law is that a strict secular religious law can be persuasively cited to com- system of international law may not neces- plement international law for the purpose of sarily be neutral in every sense of the word, establishing the existence of customary inter- as is often presumed. Carl Esbeck (1997: 1, national law in relevant cases, especially 5) has argued in that regard that: where such religious law is a formal part of national law. There is no rule of international Separationism is a value-laden judgement that certain areas of the human condition law that prohibits doing so. Actually, it is best lied with the province of religion, while recognized under international law that other areas of life are properly under the states’ municipal laws may in certain circum- authority of civil government. Separa- stances form the basis of customary rules (Shaw tionism, this most dominant of theories 2003: 79). I will further elaborate this point is in no sense the inevitable product of in the section on doctrinal perspectives in a objective reason unadulterated by an ideo- later part of this chapter. Mark Janis (1993: logical commitment to some higher point 321–22) has advanced a similar argument to of reference. Separationism cannot stand the effect that international law needs to “draw outside of the political and religious milieu on the many different religious, political, from which it emerged and honestly claim economic and social traditions to find values to be neutral concerning the nature and contemporary value of religion or the purposes common to the many nations, which may of modern government. The same must be be adopted as norms in customary [interna- said for its primary competitor, the neutrality tional] law.” theory. Indeed, to demand that any theory The neutrality argument of the separationist of church/state relations transcend its theory has however been challenged, both in pedigree or its presuppositions and be sub- its national and international context, on the stantively neutral is to ask the impossible. 169 9780415418768_4_011.qxd 26/11/2008 02:37PM Page 170

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The historical awareness of the separationist in a clear way because the private and public perception of international law is based on the spheres overlap extensively in all societies, fact that it is generally motivated by a post- which makes it difficult to separate the two Reformative and post-Westphalian inter- spheres in relation to issues regarding religion pretation of international relations informed and international law in many societies today by the European historical experience of the (Thomas 2005: 35). Christine Chinkin has long years of religious wars of the sixteenth noted that: “The location of any line and seventeenth centuries. The Peace of between public and private activity is cultur- Westphalia was reached after a century of reli- ally specific and the appropriateness of using gious wars that ravaged Europe between Western analytical tools to understand the 1550 and 1650. Scott Thomas (2005: 22) global regime is questionable” (Chinkin has noted that this experience has led to the 1999: 390). Carolyn Evans (2005: 2) has thus general impression in modern international observed that: relations that “when religion is brought into domestic or international public life ...it [E]ven if religion is often distinguished inherently causes war, intolerance, devastation, from law in Western legal and political political upheaval, and maybe even the col- philosophy, and largely ignored in legal lapse of the international order,” and thus writing, no such division can be neatly main- must be excluded from both the political and tained in the real world. This is particularly the case in many parts of the world ...where legal realms of international relations gener- 8 the law and religion are often deeply ally and international law specifically. He intertwined and religion may play a described this interpretation of the wars of more meaningful and significant role in religion in Europe as both a “political mytho- influencing behavior than does law. logy of liberalism,” and the “myth of the modern secular state” which continues to affect Practically, the separationist theory does not “the way culture and religion are interpreted yet have a universal reception, as religion still in international relations today” (Thomas plays a significant public role in many states 2005: 22), and thereby proposed the view that today and the world still divided into secular “[a] new approach to international order is and non-secular countries. This brings me to required which overcomes this ‘Westphalian the second theoretical perspective – accom- presumption’ ” (Thomas 2000: 815). modationist theory. Thus, while the separationist theory is historically aware, its historical awareness Accommodationist theory is not necessarily universal but based on a European experience, which has been chal- In contrast to the separationist theory, the lenged in the contemporary debate on the rela- accommodationist theoretical perspective tionship between religion and international advances the view that religion can play an law. The general contention in that regard important normative role in international is that the war of religions experienced in law and must therefore be accommodated in Europe may not necessarily reflect the reli- that regard. This perception is based gener- gious experiences of other civilizations in ally on a naturalist view of international relation to the accommodation of religious law, which was traditionally underpinned by norms within the public sphere of law and religion as analyzed in the historical perspec- governance and does not thus, necessarily, tive earlier. Proponents of this view assert that reflect a universal worldview on the subject. religious considerations are too important Furthermore, a strict dichotomy between for the majority of the world’s population to the private and the public sphere, as required be considered irrelevant or problematic for under this theory, is not easily determinable accommodation in the public sphere of law 170 9780415418768_4_011.qxd 26/11/2008 02:37PM Page 171

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generally and of international law particularly.9 international law. Religious principle and The main argument of this theory is that since dedication were, for example, at the heart many aspects of international law, such as of the movement in the nineteenth century human rights, humanitarian law, environ- for the promotion of international arbitra- mental law, disarmament and maintenance tion and adjudication. Many twentieth- of international peace and security, are all century achievements of international law and international organization stem from the underpinned by humaneness, considerations nineteenth-century religious enthusiasts of of morality and human dignity, religious international law. That such religiously norms and values can make an important con- based enthusiasm for international law still tribution in that regard and must therefore exists is easily seen by an observation of the be normatively accommodated within the record religious groups surrounding such principles of international law. For example, international causes as human rights law, Christopher Weeramantry (2004: 15), a for- disarmament and environmental law. mer judge of the ICJ, has observed: Thirdly, the morality of religion has provided some of the glue that has made international law stick. The binding force of any Given the strength in the modern world of law, international law included, cannot rest religious traditions, such as the Buddhist, solely on force. The legitimacy of inter- Christian, Hindu and Islamic, and that national law and international organizations they command the allegiance of over three ultimately is a function of widespread indi- billion of the world’s population, there vidual beliefs that the law and its author- cannot be any doubt that future thinking ities are right and appropriate. International on international law can benefit deeply lawyers have long recognized the potential from the teachings contained in these of religious and moral belief for building a traditions. sense of international community whereby the peoples of the globe will be concerned Similarly, in answering the question of with the fate of all the nations, not just their whether religion has served as a catalyst own. or impediment to international law, Mark Janis (1993: 321–22) identified that religion With specific reference to international could play three important facilitative roles humanitarian law, Carolyn Evans (2005: 2) in international law as follows: has equally argued that religion “can have persuasive value to those who are, or who con- First, religion traditionally has been one of sider themselves to be, outside the scope the most fertile sources of the rules of of traditional international law, particularly international law. It may well be that all the ever more important non-state actor. religious traditions have norms that are It can add an important moral or emotional applicable to the relations of states and dimension to reasons for compliance with their peoples . . . One of the major tasks international law. Even a pragmatic, secular confronting international lawyers in the advocate of international humanitarian law modern era is to draw on the many differ- may see strategic advantages to the selective ent religious, political, economic and social use of aspects of religious traditions to bol- traditions to find values common to the ster compliance and commitment to the laws many nations, which may be adopted as of war.” norms in customary law. This should be a mission, not only for scholars of international The accommodationist theory has often law, but also for scholars of all the world’s been found useful by other religious advo- religious faiths. cates who seek to challenge the European Secondly, religious belief has been one and Christian foundations of modern inter- of the chief motivations for enthusiasts of national law and its perceived continued 171 9780415418768_4_011.qxd 26/11/2008 02:37PM Page 172

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influence on many aspects of the system Carolyn Evans (2005: 2) argued that in despite its formal post-UN secularization. addressing the relationship between religion The contention is that through the accom- and international law “[s]ome writers focus modationist theory, other religions can con- only on the positive aspects of a particular tribute positively to the development of religious tradition and dismiss any negative role international law in a way that makes its prin- played by that religion as a misinterpretation ciples much more universally persuasive to all of its true meaning,” while “[o]ther writers religions. Ibrahim Shihata (1962: 101–102) has choose only to focus on the more dangerous argued in respect of Islamic law that through and divisive aspects of religion” without the accommodationist theory, “contemporary acknowledging the positive aspects. That international law will probably prove to be demonstrates a one-sided approach that does a more readily accepted system to [the] vast not present a full perception of the relation- part of the international community vaguely ship. The double-edged theory remedies referred to as the ‘Muslim world’.” that one-sided approach by advocating, on the The main shortcoming and challenge to this one hand, the important need to recognize theory is that it is usually one sided and most that there are religious provisions that are inter- of its advocates do not often acknowledge that national law friendly and can be utilized to there are provisions in almost all religions that promote compliance with international law, are evidently inimical to some principles of while emphasizing, on the other hand, the international law. There are many contem- need to also acknowledge that there are reli- porary examples of violations of some funda- gious provisions that are apparently conflict- mental principles of international law by ing with international law. states and non-state actors invoking religious In addressing the relevance of religion to provisions and viewpoints to justify their modern global governance, Richard Falk actions. Thus in his answer to whether reli- not only advances the double-edged theory gion has served as a catalyst or impediment but also points out the effect of each of its to international law, Mark Janis (1993) two edges and proposed how to deal with each further noted that apart from its potential of them. He noted that: of facilitating international law religion also has the potential “to complicate the work of [A]ll great religions have two broad tend- international lawyers,” which, in essence, encies within their traditions: the first is to be universalistic and tolerant toward those brings us to the examination of the third who hold other convictions and identities; theoretical perspective of the relationship the second is to be exclusivist and insistent between religion and international law – that there is only one true path to salvation, double-edged theory. which if not taken, results in evil. From such a standpoint, the first orientation of religion is constructive, useful, and essential if the Double-edged theory world is to find its way to humane global The double-edged theoretical perspective governance in the decades ahead, while lies between the separationist and accommo- the second is regressive and carries with it dationist theories. It generally reflects a realist a genuine danger of a new cycle of religious view of the relationship between religion warfare carried out on a civilizational scale. The hope of the future is to give promin- and international law and argues primarily that ence and support to this universalizing religion is like a double-edged sword that could influence of religion and, at the same time, be utilized either positively or negatively in to marginalize religious extremism based its relationship with international law. In on an alleged dualism between good and advancing the double-edged theory in rela- evil. tion to international humanitarian law, (Falk 2002: 7) 172 9780415418768_4_011.qxd 26/11/2008 02:37PM Page 173

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While Falk’s proposition for dealing with each non-discrimination, but could, on the other of the two edges of this theory (i.e. “give hand, also be negatively applied to restrict prominence and support to [the] universal- religious beliefs and norms that may be indis- izing influence of religion” and “marginalize criminately considered incompatible with religious extremism based on an alleged relevant principles of international law. A strict dualism between good and evil”) is logical, and indiscriminate secular interpretation of the problematic aspect is with the latter point international law may sometimes have neg- on how to marginalize religious extremism. ative impacts on personal religious beliefs Realistically, it would be extremely difficult and practices of individuals and groups, to achieve such marginalization of religious which could diminish their confidence in extremism at the grassroots level in many a strictly secular system of international law. religious societies as long as the principles and This is exemplified, for example, in the cur- application of secular international law are con- rent jurisprudence of the European Court of tinued to be seen at the grassroots, especially Human Rights on the wearing of head- in the developing world, as being politic- scarves by Muslim women as required by their ally manipulated by the political elite in the religious beliefs,10 which has been criticized developed world, and consequently regarded by some commentators (see, e.g. Ali 2007; as incapable of impartially resolving long- Hoopes 2006; Vakulenko 2007). The pos- running international crisis such as the sible negative impacts of an indiscriminate Israeli–Palestinian crisis in the Middle East. international secularism on the relationship For example, the Israeli–Palestinian crisis between religion and international law are continues to influence the religious attitude well reflected in Elizabeth Hurd’s (2004: of many Muslim states, organizations and indi- 240) observation that: viduals in ways that have impacted seriously on the relationship between religion and [I]n an interdependent world in which international law. Marc Gopin has emphasized individuals draw from different sources the need for the international community of morality, an indiscriminate secularism to appreciate the fact that religion plays an leads to three risks. There is the potential important role in the Israeli–Palestinian of a backlash from proponents of non- crisis. He argued that international law’s secular alternatives who are shut out of failure so far in resolving the crisis “stems in deliberations on the contours of public large part from its complete neglect of cul- order. There is a risk of shutting down new approaches to the negotiation between tural and religious factors,” and thus called for religion and politics, in particular those “greater integration of the religious commun- drawn from non-Western perspectives. ities of the region into the peace-building Finally, there is a risk of remaining blind efforts” asserting that “only by including to the limitations of secularism itself. religion in the peace process can we move past fragile and superficial agreements and toward Richard Falk (2002: 7) also advances a a deep and lasting solution, to the crisis” similar view regarding what he calls “secular (Gorpin 2002: inner front jacket). intolerance” in his own observation that: Thus, it is important to note that, similar to religion in its relationship with international [S]ecular views that hold the line against law, international law can equally have a their perception of religion also can adopt double-edged effect in its relationship with fundamentalist canons of belief, and view religion. On the one hand, international law those who seek to center their identity can positively facilitate the flourishing of on religious affiliation as intrinsically evil. religion through its guarantee of international Such secular intolerance is as unwelcome religious freedom and international religious with respect to informing patterns of 173 9780415418768_4_011.qxd 26/11/2008 02:37PM Page 174

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global governance as its religious counter- relevant Muslim states in relation to inter- part. Both religionists and secularists can only national law in different ways, sometimes pos- contribute to the emergence of humane itively and sometimes negatively (see, e.g. forms of global governance if they adhere Baderin 2001). I have analyzed, elsewhere, to an ethos of tolerance. the different approaches and perspectives to such interaction between Islam and inter- The double-edged theory thus provides us national human rights law in Muslim states with an important perceptive tool for a crit- and argued that such relationships need not ical evaluation of the relationship between necessarily be negative and adversarial but religion and international law. It serves as a could be positive and harmonistic in ways that very practical and objective analytical process can facilitate the realization of the ideals of for understanding and managing that rela- international law in Muslim states (Baderin tionship in a manner that can lead to a mutu- 2007). The formal interaction between reli- ally beneficial interaction between the two, gion and international law at this level is leading to the realization of a more humane relatively limited in states where religion has and universal international law. This theory, no direct formal role in the domestic law. however, calls for pragmatism and legal dyn- For example, Ilias Bantekas (2007: 117) has amism, which brings us to the examination noted in that regard that while Christianity of the empirical and doctrinal perspectives of as the dominant religion does inevitably the relationship. influence a variety of policies in some western countries, the policy of those countries remains essentially and formally based on Empirical and doctrinal secular principles in relation to international perspectives law. The second level of interaction is in rela- Empirically religion, and international law may tion to regional inter-governmental organ- interact at four main levels as analyzed in this izations (RIGOs) in which religion plays a section. While the formal public role of formal role. The importance of RIGOs in Islam in the domestic laws of many Muslim international law is very well reflected in states makes it feature prominently in the Chapter 8 of the UN Charter, thus where reli- illustrations that follow, the analyses applies gion plays a formal role in the objectives of similarly to other religions in that regard. a RIGO that can inevitably create possible The first level of interaction is in relation interaction between such religion and inter- to the domestic laws of states where religion national law at the regional level. Similar to plays a formal role in national laws and the example of domestic law in Muslim policies. Owing to its public role in such states above, the Organization of Islamic domestic systems, religion becomes directly Conference (OIC) is a distinctive example in relevant in the interaction of international that regard. The OIC Charter provides that law with the domestic law of such states. the organization is, among other objectives, Currently, this level of interaction between to promote Islamic spiritual, ethical, social, and religion and international law occurs mostly economic values among the member states in Muslim states whose constitutions formally as an important means of achieving progress recognize Islam as the religion of the state and for humanity.11 The OIC has in that regard Islamic law as part of state law. There are cur- adopted instruments that make reference rently a significant number of Muslim states to Islam as a relevant factor in relation to in that regard (see, e.g. Stahnke and Blitt 2005: international law in the Muslim world. 7–12). The formal role of Islam in such states However, it has also consistently expressed has often influenced the state practices of the its commitment to international law and 174 9780415418768_4_011.qxd 26/11/2008 02:37PM Page 175

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cooperation with the UN but usually emph- ing for the right to freedom of religion, which asized the role of Islam in that regard. In 2004 includes the right to collective practice the organization made a submission to the UN and public manifestation of religion by indi- General Assembly in respect of proposed viduals and groups as long as this does not reforms of the UN Security Council stating violate public order or the fundamental that “any reform proposal, which neglects rights of others.13 It also prohibits religious dis- the adequate representation of the Islamic crimination against individuals and groups,14 Ummah in any category of members in an which apparently facilitates the flourishing of expanded Security Council will not be religion and enables individuals and religious acceptable to the Islamic countries.”12 This groups to plead the right to religious freedom obviously reflects an accommodationist in defense of their religious beliefs and values, approach. Formal interaction between religion which augurs for a harmonious relation- and international law at this level is also ship. By the same token, international law relatively limited in RIGOs where religion does challenge religious norms in different does not play a formal role in the system. For ways, which equally raises the possibility of a example, a proposal by European churches conflicting relationship between the two in for a formal recognition and reference to relation to individuals and groups. A common Christianity in the Constitution of the Euro- example is the possibility of conflict between pean Union (EU) during the drafting and the limits of freedom of expression and free- consultation stages of the constitution was dom of religion under international human discarded in the end, which was obviously rights law. a reflection of the separationist theory Apart from the relationship at the level (Bantekas 2007: 129–30). of individuals and groups, there are also The third level of interaction is in relation today many non-governmental organizations to the religious freedom of individuals and (NGOs) motivated mainly by religious prin- groups, while the fourth level is in relation ciples and values into participating actively and to other non-state actors such as religious positively in different areas of international non-governmental organizations (NGOs) law. The need for interaction between and institutions. As international law has, today, religion and international law at the level of moved beyond its traditional state-centric NGOs and other religious institutions was nature, it applies not only strictly to states demonstrated in the hosting of a conference but may impact directly or indirectly on the on interfaith cooperation to promote world lives and activities of individuals, groups peace within the context of international law and other non-state actors respectively. Thus at the UN headquarters in June 2005 at the the interaction between religion and inter- end of which the conference recommended national law occurs not only in relation to the “an expansion and deepening of the rela- practices of states and inter-governmental tionship between the United Nations and organizations but also in relation to the reli- civil society, including religious NGOs.”15 The gious beliefs and practices of individuals relationship at this level is also demonstrated and groups. Relevant aspects of international by the active involvement and influence of law, such as human rights, environmental religious institutions such as the Roman law, refugee law, and humanitarian law Catholic Church on issues such as abortion, brings international law into direct contact with death penalty, use of force, human rights and the religious beliefs and practices of indi- other important issues of international law viduals and groups in different parts of the (Bantekas 2007: 131–32). world today. As earlier noted, international The consequential question from the human rights law acknowledges the import- empirical perspective is whether these differ- ance of religion in human society by provid- ent levels of interaction between religion and 175 9780415418768_4_011.qxd 26/11/2008 02:37PM Page 176

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international establish any legal basis for reli- is one of free access and enjoyment for the gion as a possible source of obligation or right fishermen of both Eritrea and Yemen,” under international law, which brings us to which must be preserved for their benefit.19 the doctrinal perspective of the relationship. That approach was, in my view, a relevant As stated earlier, the UN Charter makes and valid means of establishing the local no direct reference to religion as a source of custom in that context between the parties international law. However, the Charter also based on the facts before the tribunal. Sim- does not contain any provision prohibiting ilarly, in the case of Saudi Arabia vs. Aramco relationship or interaction between religion the arbitrator referred to relevant principles and international law. Under Article 38 of the of Islamic law to support the customary ICJ Statute,16 the main sources of international nature and the universal recognition of the law are international treaties, customary principle of pacta sunct servanda in international international law and general principles of law law by observing that “Muslim law does recognized by civilized nations.17 Certainly, not distinguish between a treaty, a contract where state parties to an international treaty of civil or commercial law” and that “[a]ll these consent to the inclusion of a religious prin- types are viewed by Muslim jurists as agree- ciple or norm as a provision in a treaty, this ments or pacts, which must be observed . . . would be binding on the parties as long as such as expressed in the Koran: ‘Be faithful to religious principle or norm does not violate your pledge, when you enter into a pact’.”20 a norm of jus cogens under general international Another significant example can be cited law.18 A good example of this is the provi- of Judge Weeramantry’s (as he then was) sion in Article 20(3) of the UN Convention dissenting opinion in the case concerning on the Rights of the Child (1989b) which the Legality of the Threat or Use of Nuclear includes “kafalah of Islamic law” as a recog- Weapons,21 in which he referred notably to nized means of alternative care for a child tem- different religious traditions as follows: porarily or permanently deprived of his or her family environment. This inclusion of a It greatly strengthens the concept of relevant principle of Islamic law in a substantive humanitarian laws of war to note that provision of a treaty under international law this is not a recent invention, nor the prod- demonstrates the practicality of the accom- uct of any one culture. The concept is modationist theoretical perspective analyzed of ancient origin, with a lineage stretching back at least three millennia. As already earlier. observed, it is deep-rooted in many cultures With regards to customary international law, – Hindu, Buddhist, Chinese, Christian, I argued earlier that the approach of the inter- Islamic and traditional African. These cul- national tribunals in the Eritrea vs. Yemen and tures have all given expression to a variety United States Diplomatic and Consular Staff of limitations on the extent to which any in Tehran cases, each of which referred to means can be used for the purposes of relevant religious principles respectively, can fighting one’s enemy. The problem under contribute to the development of customary consideration is a universal problem, and this international law especially in relation to the Court is a universal Court, whose com- identification of local custom among a group position is required by its Statute to reflect of states that follow particular local practices the world’s principal cultural traditions. The multicultural traditions that exist on accepted as law between them. For example, this important matter cannot be ignored in the Eritrea vs. Yemen case the tribunal in the Court’s consideration of this ques- had referred to Islamic religious principles to tion, for to do so would be to deprive its establish that “the traditional fishing regime conclusions of that plenitude of universal around the Hanish and Zuqar Islands and the authority which is available to give it added islands of Jabal al-Tayr and the Zubayr group strength – the strength resulting from the 176 9780415418768_4_011.qxd 26/11/2008 02:37PM Page 177

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depth of the tradition’s historical roots and law one of the principal legal systems of the the width of its geographical spread.22 world referred to in Article 38 of the Statute of the Permanent Court of International The learned judge then went on to provide Justice under the League of Nations, which detailed analysis of the relevant principles was subsequently adopted as Article 38 of the of the different religions to accumulate uni- ICJ Statute (Mahmassani 1966: 222). A sur- versal support for his opinion that the use or vey of different statements by Muslim states threat of use of nuclear weapons is illegal in and by the OIC reflects that this perception all circumstances. is still held by many Muslim states today. A All these cases and references by the dif- similar assertion has been made by Shabtai ferent international tribunals just examined Rosenne (2004: 63), in the context of Judaism establish that while religion may not serve and the development of international law, directly as sources of obligation under inter- to the effect that the provisions of Article 9 national law, it could nevertheless serve as a of the ICJ Statute is a positive acknowledg- valid complementary means of establishing ment of the need for international law to customary international law in relevant cases “draw upon the general legal experience of as confirmed by the tribunal in the Eritrea vs. mankind,” which, he argued, “draws attention Yemen that “in today’s world, it remains true to certain features of what might be termed that the fundamental moralistic general prin- the intellectual components of public inter- ciples of the Quran and the Sunna may national law, and as such, as is being increas- validly be invoked for the consolidation and ingly recognized, it has wider implications.” support of positive international law rules in their progressive development towards the goal of achieving justice and promoting Conclusion 23 the human dignity of mankind.” The same The current growing wave of scholarship is true of relevant “moralistic general prin- on religion and international law is a strong ciples” of all other religions, as was eruditely indication that religion is still very relevant reflected by Judge Weeramantry in his dis- to the modern evolution and future devel- senting opinion in the Legality of the Threat or opment of international relations and inter- Use of Nuclear Weapons case earlier cited. national law, even though this, as observed Similarly, there have been representations by Jonathan Fox (2001), is often overlooked for indirect reference to religious principles by the mainstream literature on international through “the general principles of law law and international relations. However, it recognized by civilized nations” as well as has been asserted notably that if international through Article 9 of the ICJ Statute, which law must achieve its aim of developing “a provides that in electing the judges of the ICJ legal framework that emphasizes our common “the election shall bear in mind not only that humanity and dignity” in today’s world, the persons to be elected should individually then “international lawyers can no longer possess the qualifications required, but also that afford to ignore the importance that religion in the body as a whole the representation of plays for many individuals and many societies” the main forms of civilizations and of the ( Janis and Evans 2004: vii). principal legal systems of the world should be assured.” In a memorandum presented [Author note: I thank Professor Robert by delegates of Muslim states to the League McCorquodale and professor Mathew Craven of Nations in September 1939 and to the UN for reading through the draft of this chapter Conference in San Francisco in April 1945, and for their kind comments. Responsibility it was submitted that Islam constituted one for the views expressed herein is, however, of the main forms of civilization and Islamic mine alone.] 177 9780415418768_4_011.qxd 27/11/2008 11:34 AM Page 178

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Notes mixed the outcome could be disastrous as the Wars of Religion testified.” 1 For an analysis of the complexity of defining 9 See, e.g. Weeramantry 2004: 368, who religion in international law, see, e.g. Gunn observed that more than 4 billion of the 2003. world’s population are inspired by religious 2 Jamar (2001: 609) observes eloquently that: beliefs and norms. “Religion is like law: the more closely we try 10 See the case of Layla Sahin vs. Turkey (2005). to define it, the more it slips through our grasp. 11 See the Preamble and Article II(A)(1) of the Religion is like law: both address funda- OIC Charter. mental issues about ordering society and the 12 UN Doc. A/59/425/S/2004/808 (11 October status and nature of the individual within it. 2004), para. 56. Religion is like law: both engender passionate 13 See, e.g. Article 19 of ICCPR. disagreement about their proper content and 14 See, e.g. Art. 2 of ICCPR. functions.” 15 “Report of the Convening Group of the 3 See Peace Treaty of Westphalia of 24 October Conference on Interfaith Cooperation for 1648, http://www.yale.edu/lawweb/avalon/ Peace: Enhancing Interfaith Dialogue and westphal.htm. Cooperation towards Peace in the 21st 4 See, e.g. United Nations Charter (1945) Art. Century”, 22 June 2005: 2. 1 (3); Art. 13(1)(b); Art. 55(c) and Art. 76(c). 16 The ICJ Statute is annexed to the UN 5 For example, Haynes (2005) observed that Charter, of which it forms an integral part. “[r]eligion’s role in international relations 17 The subsidiary sources are “judicial decisions has recently become an increasingly import- and teachings of the most qualified publicists ant analytical focus,” and Hackett (2005: 661) of the various nations” and are not considered observed that “the early 1990s marked an here. upsurge in literature recognizing the role of 18 This is pursuant to Article 53 of the Vienna religion in the public sphere.” Convention on the Law of Treaties (1969). 6 Eritrea vs. Yemen 119 ILR, 417. 19 Award of the Arbitral Tribunal in the Second 7 See also Ravitch 2004, who asserted that Stage of the Proceedings between Eritrea “neutrality, whether formal or substantive, and Yemen (Maritime Delimitation), 17 does not exist.” December 1999, para. 101. 8 See also Ahdar and Leigh 2005: 73, where 20 Saudi Arabia vs. Aramco 1963: 27 ILR 117. the authors argue that: “For Enlightenment 21 Legality of the Threat or Use of Nuclear Weapons separationists, separating church and state 1996: 35 ILM. ensured that dangerous religious passions and 22 Dissenting Opinion of Judge Weeramantry, ‘superstitions’ would be confined to the pri- para. 2. vate sphere. When religion and government 23 Eritrea vs. Yemen 119 ILR, 417.

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12 The struggle for an international constitutional order

Marc Weller

International law has come under pressure in these advances, both to international legal experts recent years. The possible rise in unilateral action and to scholars of international relations. by the United States, claims of exceptionalism in relation to “rogue states,” the failure to respond International law appears to exist in two effectively to man-made humanitarian disasters and parallel universes. On the one hand, recent genocide, and the Asian values debate have all events have pointed to a risk of, and a pos- undermined the credibility of the universal legal order. sible rise in, unilateralism, exempliﬁed mainly However, although somewhat obscured by these in U.S. action in relation to Iraq and in day-to-day developments in international politics, NATO’s aerial campaign against Kosovo. very signiﬁcant advances have taken place in inter- The two episodes also appear to have under- national law. These changes are driven by the mined the credibility of core rules of the readjustment of the international system to new, international system, such as the prohibition postmodern realities. They include a questioning of the use of force and non-intervention. of state sovereignty, the increasing role of non-state Moreover, in this context, arguments were actors in the international public realm, the ever made based on so-called exceptionalism that increasing need for transnational cooperation in seemed to erode the universal ambition of the the face of common challenges and the entrenchment international legal order. Negative excep- of certain universal core values. Gradually, these tionalism would purport to exclude “rogue” factors are combining to establish a global constitu- or otherwise unreliable or dangerous states tional order. from the protection of international legal Set against this background, this chapter rules. Positive exceptionalism would remove analyzes recent trends in the international legal states claiming to act on behalf of what they order relating to issues of statehood, sovereignty, claim to be global community values from democracy, the law-making process, international certain international legal constraints. While competencies and institutions, and compliance man- this approach may have characterized what agement. It argues that these developments, when may have been a rather brief “unipolar taken together, reveal far more advanced structures moment” for the U.S., other states may of international life than are generally presumed to follow this example. The Russian Federa- exist. The international constitutional law approach tion, in reasserting its position as a great offers a unifying framework for understanding power, has started to exhibit ambivalence 179 9780415418768_4_012.qxd 26/11/2008 02:37PM Page 180

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towards key international legal rules. Others Frowein 2000; Habermas 2005; Kolb 2001; may follow. Ku 2005; Opsahl 1961; Peters 2005, 2006; There is also an argument about the Tomuschat 1997; and von Bogdandy 2006). fragmentation of the international legal The question arises therefore of whether order, purportedly evidenced by a divergence the international constitutional approach is, in the jurisprudence of a variety of speci- indeed, grounded in the modern realities of alized or regional international courts and international life, and whether it is likely to tribunals, that has contributed to this devel- retain or gain credibility in the light of the opment. Indeed, the debate about “national disintegrative challenges to which reference or regional particularities,” recently sparked was made at the outset. by certain Asian states, has called into question the assumption that the most fundamental values enshrined in international human International constitutional rights and humanitarian rules are, indeed, uni- approaches versally shared. Moreover, the basic constituent unit of the classical legal order, the state, has A distinction is often drawn between inter- come under threat from disintegrative tend- national constitutionalism and international encies, such as violent dissolution or opposed constitutional law. International constitution- unilateral secession. Non-state actors demon- alism is seen as a proactive, future-oriented strated on September 11, 2001 that they, too, campaign, agitating in favor of the develop- can wield a decisive influence in global ment of an international constitutional system politics that is unlikely to be significantly of world governance. It is a programmatic constrained by the classical rules of the movement, building on other approaches, international system, including in particular including “world federalism” and other humanitarian law. essentially Kantian projects that have occu- These disintegrative tendencies are pied thinkers for several centuries. On one counterbalanced by the steadier, long-term hand, the long tradition of projects to build development of the international system perpetual peace through world law imbues since 1945. These developments consist of the this approach with intellectual weight. On the consolidation of international core values, other, the very fact that projects of this kind the move away from the principle of strict have tended to be formulated over several consent in the creation of international legal centuries, without implementation, is also rules with universal ambition, the increasingly seen as an indication of a lack of promise. complex variety of international actors, and The failure to achieve full implementation of the management of compliance with inter- such designs, often proposed at times of signi- national legal obligations. Taken together, it ficant change or upheaval within the inter- is argued by a steadily increasing number of national system, has reduced the credibility of legal scholars that we are heading towards an constitutionalism in the eyes of some who con- international constitutional system based on sider it an “idealist” construct. This view has common core values, the international rule also been extended to more recent arguments of law and mechanisms for law enforcement in favor of the international constitutional (albeit largely decentralized ones). Indeed, organization of the world, for instance at the a bibliographic search in support of this end of the First and Second World Wars (Clark chapter has revealed in excess of 100 recent and Sohn 1958; Verdross 1926). major scholarly articles addressing inter- In contrast to international constitution- national constitutionalism (see, among others, alism, which is essentially a movement Caldani and Ángel 2004; de Wet 2006a; agitating in favor of global social change, the Fassbender 2007; Fischer-Lescano 2003; international constitutional law approach is 180 9780415418768_4_012.qxd 26/11/2008 02:37PM Page 181

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significantly more pragmatic. Previously, this constitution, and in its emphasis on the pur- latter approach was dominated by Austro- portedly inherent rights of states. German scholars educated in Kelsen’s strictly Others have attempted to construct a logical theory of the hierarchy of legal picture of international constitutionalism by competences, and a civil law belief in the observing the development of self-contained centrality of statutes and their literal applica- legal regimes at the international level (Álvarez tion (hence, the heavy emphasis on the U.N. 2001). For instance, at the regional level, the Charter as “the” international constitution). EU has been taken as a model of international Seen from this perspective, international constitutional development (Pernice 1999, constitutional legal studies are devoid of a 2002; Ruiz-Fabri and Grewe 2004; Uerpmann romantic campaigning element – the concern 2003). In terms of sectoral regimes, much is principally with the present state of affairs scholarship has been applied to the WTO as and not with an imagined future. The school a functional constitutional order at the inter- of international constitutional law is rooted national level (Petersmann 1996/7). More- in empiricism. It claims that key elements of over, in the absence of the kind of advanced an international constitution can already be institutionalization apparent in the WTO, observed in operation – to observe them we other sectoral regimes of international co- need only to shift our vantage point, our operation, such as the environment, have analytical paradigm. been regarded as the seeds of constitution- Of course, there are various incarnations alization (Scheyli 2002). Of course, these of the international constitutional law ap- regional or sectoral approaches alone do not proach (see for example, Fassbender 2005; make a persuasive case in favor of a genuinely Johnston 2005). At its most all-encompassing, universal and comprehensive international international constitutional law concerns constitutional order either. After all, part itself with all public decisions. Such a system of the reason for the formation of special would be similar to the vision articulated regional or sectoral regimes may well be the in Philip Allott’s Eunomia – a self-regulating very absence of effective regulation at the global structure managing the exercise of universal or general level. Furthermore, it is public authority, in which the significance not always clear whether the mechanisms of of the state has been much reduced (Allott regional or sectoral integration are, in fact, 2001, 2002). At the other end of the spec- capable of being transferred to the universal trum, by contrast, one finds rather narrow and level in all respects. Quite clearly, the organ- restrictive approaches. For instance, a signi- ized global community does not yet func- ficant amount of energy has been expended tion in all, or even most, of its aspects as a in arguing whether or not the U.N. Charter supranational organization, ordered accord- itself can be described as an international con- ing to one constitutional text and equipped stitution (see, for example, Crawford 2002b; with a single set of interlocking institutions. Dupuy 1997; Fassbender 1998a, 1998b; Instead, we are witnessing the development Franck 2003). Clearly, taken alone, this view of a system that is becoming ever more com- is too mono-dimensional and simplistic to plex. Still, this approach also adds to our grow- describe accurately the complex international ing understanding of the “legalization” and constitutional processes of the global legal “constitutionalization” of international life. system. The U.N. Charter does not offer much Still other approaches focus on the inter- insight into the regulation of public power action between national and international outside the narrow context of international law (Bryde 2003; de Búrca and Gerstemberg peace and security. Moreover, it is somewhat 2006; Cottier 1999; Kadelbach and Kleinlein outdated in its identification of the core 2006; Rensmann 2006). This resurgence of values underpinning the universal international “monist” approaches to law, with the addition 181 9780415418768_4_012.qxd 26/11/2008 02:37PM Page 182

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of the more recently discovered concept polity”) that is underpinned by a core value of multilevel international governance, is system common to all communities and another useful instrument in the analysis of embedded in a variety of legal structures for international constitutional law. This ana- its enforcement. lytical toolbox is further complemented by (de Wet 2006a: 53) advances in international relations theory, drawing, in particular, on regime theory, The diverse approaches to international liberal and democratic theory and the grow- constitutional law can thus be regarded as ing international governance literature. In fact, the distinctive parts of a puzzle that, when there are several points of contact between fully assembled, reveals the overall picture developing theories of global multilevel gov- of international constitutional law today ernance and the international constitutional (Weller 1997). That picture, it has to be ad- law approach, both in law and in international mitted, remains a rather complex one. This relations. Indeed, the international constitu- complexity is due, in part, to the prolifera- tional law approach, in its more modest tion of constitutionally authorized non-state form, can well be considered an evolution actors empowered to fulfill certain public of the “international community” doctrine, functions within the universal system. shared by both disciplines and advanced by The particular elements constituting this some of their most venerable exponents.1 multifaceted international constitutional sys- While there remains a diversity of per- tem might, of course, be contested, depend- spectives, it is nonetheless possible to discern ing on the respective legal tradition and a gradual convergence of approaches. The background of the scholars contributing to dichotomy between “idealist” constitution- the debate. Indeed, the question of whether alism and the positivist international con- or not the international legal system may stitutional law approach is gradually being now be considered an international constitu- bridged. Clearly, the core elements of an inter- tional one is contingent on the definition national constitution already exist and can be one adopts of a constitutional system more described in positivist terms. However, it is generally. Much like the ancient debate of also evident that the international constitu- whether international law is a legal system tional system is still evolving. Hence, it is proper, a rigid transposition of legal concepts legitimate to foster visions for its future and terms from the domestic sphere is not of development without being exposed to the much use here.3 Hence, those who believe charge of being naively “idealist.”2 More- that a constitution must be contained within over, international constitutional investiga- a single constitutive document, generated tions that draw on regional or sectoral legal in a revolutionary or otherwise singular regimes, or a reevaluation of the relationship constitution-making act, and must provide between national and international law, fit for a fully institutionalized system of law- usefully within a broader emerging picture making, adjudication and enforcement, will of an evolving international constitutional inevitably conclude that international law system. Indeed, Erika de Wet, first Professor does not qualify. However, the very signi- of International Constitutional Law in the ficant body of literature referred to above tends University of Amsterdam, defines international to agree on the essential elements of a constitutional law as: constitutional system outside of the strictly domestic context. It is generally agreed that [A] system in which the different national, the international constitutional structure regional and functional (sectoral) constitu- consists of formal and material rules, and of tional regimes form the building blocks of institutions. Formal rules concern the assign- the international community (“international ment and exercise of public authority at the 182 9780415418768_4_012.qxd 26/11/2008 02:37PM Page 183

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international level. Material rules are sub- existence of the nominal rule of sovereign stantive rules of governance. This chapter will equality. concern itself with the formal constitution, The doctrine of absolute sovereignty mentioning the substance of material law which underpinned this classical system was only by way of example when considering the expressed in Jean Bodin’s Six livres de la law-making process. République. Sovereignty denotes the supreme authority over all subjects and objects within a given territory. Thus, the very person of the The formal international prince, through divine right or social contract, constitution was the ultimate source of all secular authority. Louis XIV really meant it when he said, If formal international constitutional law “l’etat c’est moi.” Hence, public authority is concerns the organization of public power, only genuine if its origin can be traced back then it must contain a number of key elements. to a pronouncement by “the sovereign.” First, the very concept of an international The absolute right to exercise public constitutional system implies that we are authority within the realm, and the exclusive concerned with a system based on the rule of right to represent all within its claimed juris- law. This means that all public decisions diction in relation to other states, remained must be generated according to a constitu- unchallenged, even when the Enlighten- tionally established process. The conduct of ment transferred the source of sovereign public and private actors must comply with authority from the very person of the prince the essential core values underpinning the to the abstraction of the state. Although constitutional system and with the rules it political philosophers asserted a sphere of generates. Where disputes arise, all actors must autonomy on behalf of those trapped within have the right, ultimately, to have the dispute this all-powerful state, nineteenth-century resolved on the basis of the law. nationalism consolidated their effective dis- The first point to consider, therefore, enfranchisement. A population could only concerns the assignment and exercise of actualize its historic potential if it acted as a public authority, or competence. In order to Hegelian nation, through the institutions of understand the fundamental shift that has taken the state. place in this respect, it is necessary first to By contrast, the modern state system of the consider briefly the classical origins of the twentieth century purported to embody the modern state system. principle of popular sovereignty. Sovereignty was no longer held uniquely by the person of the prince or the abstraction of the state, Classical antecedents but rather was vested collectively in all the In classical doctrine, the sole constituents of constituents of the state. The authority to the classical international system were states, govern, and to represent the governed inter- represented exclusively by governments. nationally, was to be based on the will of the These states were born nominally equal and population of the state in question. How- free, and were endowed with imprescript- ever, this process of transmitting the will of ible rights (the so-called fundamental rights the people and thus of legitimizing public acts of states, purportedly enshrined in U.N. was generally illusory, as the international General Assembly Resolution 2625 (XXV)). legal rules crafted by governments continued Derogations from this natural state of free- to assert that any effective administration dom were only possible through consent, or reflected, by definition, the will of the people. perhaps through the actions of “great” states Hence, governments which could maintain which dominated the system, despite the themselves through whatever means were 183 9780415418768_4_012.qxd 26/11/2008 02:37PM Page 184

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entitled to benefit from the fundamental exclusively controlled and represented by an rights which attached to the concept of the internationally unaccountable government, state, such as the right of non-intervention, no longer exists. The term “state” no longer the right to receive assistance in engaging describes a metaphysical entity endowed internal and external enemies, and so on. with supreme internal and external author- The legitimizing myth of the universal ity. Instead, it is a technical term which principle of popular sovereignty was main- modestly represents one of many layers of tained through the adoption of the concept competence to which individuals have trans- of human rights. These were international ferred public powers. Other such layers of guarantees of governmental conduct which competence might have been created in purported to protect individuals who re- the form of non-governmental organizations mained submerged within the state and the exercising public functions; regional struc- international system as a whole. However, tures of governance, the authority of which as Philip Allot has so convincingly demon- is not derived from a grant of authority from strated, the very concept of human rights is above; supranational structures, such as the one which brings the disenfranchisement European Union (EU); or universal mechan- of the domestic constituents into relief. By isms of public administration, including the agreeing to accept human rights obligations, United Nations Security Council. governments confirm that the existence of such Just as the “loyalty” of its constituents is no rights is in fact contingent on an act of will longer necessarily focused exclusively on the on their part. Hence, the state, represented state itself, sovereignty is no longer a com- exclusively by the government, confirmed the modity located uniquely in the abstraction of principle of absolute power over its con- the state. Instead, “sovereignty” is constantly stituents through the very act of “granting” being exercised by all, through the infinitely them certain rights. complex process of assigning authority to Similarly, the modern feature of the devel- appropriate and often overlapping struc- opment of relative international personality tures of governance, from the local to the of non-state actors did not fundamentally universal. attack the theory of the concentration of At present, of course, this assignation of sovereignty within the state. The powers of powers still favors the state as the principal layer public international organizations, for ex- delegated competence. However, and cru- ample, were explained in a way which left cially, it is not a creature which, simply by intact the view that all public authority must virtue of its existence, enjoys all powers that ultimately emanate from the state structure. it has not positively relinquished through an Hence, it was argued that those international act of consent. Instead, the state can exercise organizations which enjoyed some form of only those powers specifically delegated to it autonomous decision-making powers in by its constituents or, expressly or impliedly, relation to states and other actors did so pre- by the international legal order. In addition, cisely because they had been endowed with the administration of state powers is sub- such authority by their member states. ordinated to the universal constitutional process, both externally and, in some respects, even internally. That is to say, the state is always Reassessment of public power in embedded within the international constitu- the international realm tion and cannot, even through an act of At present, we are witnessing the destruc- unanimous will by its constituents, give itself tion of the legitimizing myth of classical powers inconsistent with that constitutional and modern sovereignty. It is becoming order. For instance, if the population of a state increasingly evident that the sovereign state, were to vote overwhelmingly to authorize 184 9780415418768_4_012.qxd 26/11/2008 02:37PM Page 185

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their governing authorities to commit geno- EU sought membership in the International cide against a minority on the state terri- Food and Agricultural Organization (FAO) tory, such action, however democratically based on the argument that its own mem- legitimate, would offend the international con- bers (also represented in the organization) stitutional order and attract its condemnation, no longer had the competence to act on all sanction and even the possibility of armed matters falling within its purview. intervention. While this phenomenon relates to the If the exercise of public powers must be upward move of sovereignty to a supra- derived from the international constitutional national structure, a parallel trend of down- order or from a grant of authority from ward delegation can also be observed. For constituents, two difficult issues arise. First, instance, in several recent internationalized there is the increasingly complex issue of the constitutional settlements, the central govern- authoritative assessment of the competence of ment no longer enjoys the power to make individual actors on the international scene. binding agreements in relation to certain Second, there arises the question of the legit- autonomous regions without their specific imacy of a grant of authority. According consent. The process of evaluating the extent to the international legal principle that the of competence enjoyed by actors on the inter- authority to govern must be based on the national place will therefore increase in will of the governed, one might expect a pro- relevance, including in relation to the state. cess of validation of governmental authority Moreover, the material international consti- according to the democratic principle. tution denies altogether the right of representation to states whose very existence offends the international constitutional order. This Measuring competence is achieved through the subjective criteria Classically, the state was presumed to enjoy of statehood which prevail over the tradi- all public authority, including the full and com- tional, objective elements of the definition of plete right of representation and action at the a state. Hence, an entity which exists, or has international level. According to the inter- come into existence, in violation of material national constitutional model, the powers of rules of constitutional standing (see below) will the state must be founded in the vesting of never be able to attain statehood, however authority within it by its constituency. When vigorously it displays effective control over engaging in international contact, it would a defined territory and a permanent popula- therefore, at least in theory, be necessary to tion. Thus, the Turkish Federated Republic verify the extent of competence enjoyed by of Northern Cyprus, brought into being each and every individual state. In reality, how- through an unlawful use of force, has not ever, internal constitutional assignments of attained statehood. Southern Rhodesia, cre- power (for instance the power to engage in ated to negate the claim of the indigenous foreign relations, conclude treaties, participate population to self-determination, was denied in the work of international organizations, and statehood and subjected to international so on) remain fairly similar across the major sanctions. The Bantustans of South Africa, regions of the globe. Nevertheless, a number contrived to facilitate the continuation of of interesting and new particularities can be the crime of apartheid, never achieved state- observed. For instance, the member states hood. The Republika Srpska had to content of the EU no longer exercise authority in itself with status short of statehood, as it had relation to issue areas that fall within the com- come into being as a result of armed inter- petence of the Union. They lack the legal vention and possible genocide. capacity to enter international agreements with Other aspects of quality control for new regard to certain problems. For instance, the entities claiming a cluster of competences 185 9780415418768_4_012.qxd 26/11/2008 02:37PM Page 186

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which are presumed to attach to statehood the entire debate over democratic entitlement relate to their acceptance of the fundamental in international law. Briefly, this entitlement rules of the universal constitutional order. consists of two main elements: on the one Participation in that order may be denied to hand, there is the right of populations to be entities which fail to commit themselves to governed internally and to be represented the material rules of constitutional standing externally by authorities established on the basis and to essential mechanisms for their imple- of, and acting in accordance with, their will; mentation. The EU rules on the recognition on the other, there is the question of the of states, adopted at the time of the dissolu- democratic functioning of international con- tion of the former Yugoslavia, confirm this stitutional processes at the international level trend. (Bryde 2005). For the purposes of this short Processes and mechanisms for assessing introduction, it is sufficient merely to note a the authenticity and the extent of authority number of developments concerning the of actors within the system will gradually former – the legitimacy of acts of govern- expand to cover not only states and governance at the domestic level. ments, but also non-state actors (Schachter First, there is a growing recognition that 1997: 7). the existence of the state itself must be The authoritative external assessment of the based on an exercise of the will of the people. scope or extent of competence, once it has Where a major constitutional change, such as been granted by the internal constituents of dissolution, secession or merger, occurs, a the relevant political system or sub-system, can referendum, or at least an authentic decision be demonstrated once again in relation to the by the democratically elected parliament, is EU. Other actors have had to devise means required. Similarly, where a new constitution of determining whether it is the Union, its is generated, for instance after a period of member governments, or both, which are violent upset due to internal conflict, it will internationally entitled to represent the con- often now be endorsed through referendum stituents of the European system in relation or a decision by a popular assembly. More- to matters in which the Union claims either over, international peace support operations parallel or exclusive competence. This need will, in such circumstances, invariably be will increase as more substantive powers involved in generating at least a first round migrate to regional or functional organizations of democratic elections aimed at ensuring that featuring elements of supra-nationality. the new democratic consensus will indeed The emerging universal constitution is result in governance on the basis of the will also moving gradually towards recognition of the governed. of the fact that “private” actors, in particular This process is also in operation in relation NGOs and corporations, are increasingly to entities such as the institutions of the involving themselves in the administration European Union. The referenda required of public functions. Similar mechanisms for in states which recently joined the EU, and the confirmation of the authenticity and the which thus transferred significant public extent of authority claimed by such actors have power to another layer of authority, can be yet to be established. used as an example in this respect as they can be said to reflect the acceptance of a legal rule requiring the validation of a significant trans- Democratic legitimacy fer of competence from one layer to another The problem of democratic legitimacy has though an act of choice by the relevant not eluded writers on international constitu- constituents. tional law (Charnovitz 2003; Kumm 2004). Classically, international law treated the It is, of course, not possible here to rehearse effective government as the exclusive entity 186 9780415418768_4_012.qxd 26/11/2008 02:37PM Page 187

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entitled to exercise public authority within the effective authorities have been the state, and to represent it externally. The established as the result of an unlawful principle of periodic and genuine elections use of force, or as the result of, or in was not implemented with any seriousness. pursuit of, international criminal con- Effectiveness trumped democratic legitimacy. duct (Southern Rhodesia, South This, too, is now changing. There is signi- Africa, etc.). ficant international opposition to manifestly undemocratic practices of government, Under those circumstances, the universal although it has to be admitted that the pic- constitution permits action on behalf of a ture remains mixed. However, in a number population, in the absence of consent from of instances, the fundamental international the effective authorities, directly in line with constitutional principle that the authority the express or implied desire of the popula- to govern must be based on the will of the tion or a constitutionally relevant segment of people is being acted upon. These are cases the population. While this process of direct where effectiveness and legitimacy are so far action on behalf of populations should, in apart that the structural requirement of rep- principle, be conducted under a collective resentativeness must prevail over effectiveness. security mandate, recent practice indicates Hence, the test of the legitimacy of the that provisional action can also be taken by conduct of constitutional agents applying regional organizations or even coalitions of competences through public administrative states, provided the need for such action has acts, including governments especially, is been confirmed by an international objective no longer restricted to the mechanical and agency and the action does not exceed that circular validation through the effectiveness which is strictly necessary to counter the criterion. Instead, the abstract principle of immediate emergency. legitimacy in the exercise of authority has Within the international constitution, already been translated into substantive rules therefore, all public power is derived from of fundamental dissociation. Accordingly, an a popular mandate. Its exercise is bounded effective authority can no longer claim to rep- by international legal constraints. State com- resent its constituents, either generally or in petence is no longer absolute and inherent. relation to specific functions of the state, if: Instead, sovereignty is relative, if the term retains any meaning at all in a system where the constituents have directly manifested public power is attributed to innumerable this dissociation in elections that were potential layers of decision-making. More- actually held and which demonstrated over, where de facto authorities effectively clearly that the effective authorities did dissociate from the populations they claim not represent the population (Haiti, to represent, direct action can be taken on Burundi) behalf of these disenfranchised constituencies the effective authorities are actively by other international actors, be they universal exterminating a constitutionally relev- or regional organizations, or even states or ant segment of the population (Iraq, collations of states. Rwanda, Bosnia) the effective authorities are denying a population that which is necessary for Core values and law making its survival (Iraq, Somalia, Liberia) the central government has effectively Classically, the state retained full control over disappeared and civil war has led to the legal obligations to which it wished to be a need to re-establish constitutional subjected. However, even during the heyday legitimacy (Liberia, Somalia) of positivism, most states also recognized that 187 9780415418768_4_012.qxd 26/11/2008 02:37PM Page 188

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they were embedded in a rudimentary If general international law renders legal system of public order law – general inter- obligations universally opposable, the erga national (or customary) law. International con- omnes effect ensures that all states can profess stitutional law is rooted in the presumption a legal interest in compliance with those that states, as well as other actors, can only obligations of all other states. Hence, if Iraq exist within a deep international constitutional invades Kuwait, all states are legally affected, legal order. This legal order establishes a as all states share an equal interest in main- mandatory, non-derogable environment for taining an effective prohibition of the use of international action that operates irrespective force. This phenomenon is also particularly of specific consent. relevant in relation to obligations contracted into by states, but the beneficiaries of the obligation are individuals or groups. For Hierarchy instance, if Myanmar/Burma persistently Over the last 50 years, a rather sophisticated violates the human rights of its citizens, all international constitutional mechanism has other states can exhibit a legal interest in this been generated to protect and promote conduct. core values of the international system. This The next level of legal entrenchment of mechanism does not offer merely a hierarchy core international obligations is jus cogens, or of the so-called sources of law, which places the doctrine of peremptory norms of general those of constitutional standing at the top. international law. Peremptory norms are Instead, it has devised a comprehensive set those rules of international law that apply to of interlocking doctrines and mechanisms to all under all circumstances. States can never ensure that its core values are transmitted suspend their obligations in relation to, or throughout the system and are not transgressed. effectively conclude treaties that are incon- This system consists of: sistent with, jus cogens. Moreover, facts or circumstances brought about in violation of the doctrine of general (or universal) law jus cogens rules do not enjoy the protection the doctrine of erga omnes obligations of the international legal order that would the doctrine of fundamental rules ( jus ordinarily arise. Hence, if a state occupies cogens) territory in violation of the jus cogens obliga- the doctrine of serious breaches of tion relating to the non-use of force, or the obligations under peremptory norms of doctrine of self-determination, this adminis- general international law tration, no matter how effective, can never the doctrine of crimes in international mature to legal title. law. The effect of rendering a legal nullity an act offensive to jus cogens is strengthened General international law makes it possible further by the doctrine of “serious breaches to establish legal obligations that are truly of obligations under peremptory norms of universal and apply throughout the system. general international law.” According to New states are deemed to be born into the an influential document produced by the obligation to comply with general rules of United Nations International Law Commis- international law. Existing states will also be sion (ILC), gross or systematic failure by a bound, even if their specific consent cannot state to comply with jus cogens rules triggers be demonstrated. Without the authentic obligations incumbent on all other states. The universality created through the doctrine of latter must cooperate in seeking to bring to general international law, it would not be pos- an end the breach in question. They must not sible to speak of an international constitutional recognize as lawful the situation brought system. about by the breach, nor can they render 188 9780415418768_4_012.qxd 26/11/2008 02:37PM Page 189

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assistance to the offending state in maintain- as rebel movements or effective authorities that ing that situation. are denied the status of a government. The The final element in this cascade of mech- overall interest of the international constitu- anisms to protect international core values tional order is, after all, to prevent or punish concerns individual crimes. Some offenses activities of this kind, irrespective of the against jus cogens obligations are so abhorrent identity of the perpetrator. to the peace and security of mankind that they trigger direct and immediate international Consent criminal responsibility of the individuals concerned. This may be the person or persons Classically, states could micro-manage the actively engaged in the acts, or those who obligations to which they were subject by ordered their commission. Hence, in addi- giving their consent only very selectively. tion to holding the state responsible for the Through the doctrine of reservations, states conduct of those representing it, individual could even claim the benefit of membership perpetrators may find themselves exposed to in conventions with a universal aim, while criminal liability administered by any other still micro-tailoring contingent obligations in state, by specialized international courts or accordance with their wishes. Moreover, gen- tribunals, or by the newly established Inter- eral international custom could only develop national Criminal Court at The Hague. if it attracted virtual uniformity of practice These general mechanisms are capped by and opinio juris (the subjective knowledge of the emerging institutional architecture to being required to follow that practice as a protect and preserve core values of the inter- matter of law), including states representing national system. In particular, the U.N. the major geographic and ideological systems Security Council has expanded its remit of of the world and states specifically affected by action. It can now consider not only breaches the rule in question. Moreover, states could of international peace, but will also consider exempt themselves from the application of threats to peace and security stemming from individual rules seeking universal acceptance the internal conduct of governments or through the doctrine of persistent objection. authorities. According to Article 103 of the Even under this restrictive, consent- U.N. Charter, such action trumps compet- based regime, it was possible to generate ing treaty obligations. an impressive body of general international The core values of the international system law, whether it was of a formal constitutional of protection, evident in these doctrines and kind (say the customary international law on mechanisms include: treaties) or material (for instance, the customary law of the sea). Indeed, in some instances prohibition of the use of force requiring rapid international regulation, the armed intervention doctrine of “instant (general) custom” facilit- colonialism, armed occupation, racist ated the informal establishment of universal regimes and other violations of the legal regimes that had suddenly become right to self-determination necessary, for example, due to unexpected slavery, torture and other crimes of advances in technology (i.e. space travel humanity, including politically motiv- bringing the moon within human reach). ated rape More recently still, it has been proposed that forcible ethnic displacement and it is not sufficient to rely on universal con- genocide. ventions or the emergence of rules of custom in order to address issues of concern to all It is noteworthy that these obligations can also mankind. For instance, it is difficult to accept be applied in relation to non-state actors, such that a handful of “specifically affected states” 189 9780415418768_4_012.qxd 26/11/2008 02:37PM Page 190

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should be able to obstruct the development Compliance management of environmental legal rules that are of essential importance for the well-being of the If legal rules within the international consti- planet at a whole (Buzzini 2004; Charney tution are stable, the question of compliance 1993; Mosler 1974; Nadelmann 1990; Simma with them still needs to be addressed. Given 1994; Tietje 1999; Tomuschat 1993; de Wet the absence of a central law-enforcement 2006b). Similarly, it has recently become agency, this issue has traditionally been con- apparent that it may be necessary to enforce sidered the weak spot of international law. certain obligations concerning proliferation of weapons of mass destruction even in rela- Rules of state responsibility tion to states that may not have contracted into the relevant proliferation regime, given States and other internationally authorized that the threat posed by such weapons and actors have traditionally claimed that only they technologies cannot be contained by national are competent to determine by which inter- boundaries. The creation of “objective legal national legal obligations they are bound, and regimes,” that is, of legal obligations created whether or not they are in compliance with by some, but rendered opposable to others, these legal obligations. The freedom of states has therefore taken place in some areas of inter- in assessing this level of compliance has been national constitutional relevance. reduced somewhat through the codiﬁcation of the law on state responsibility by the ILC. Stability, change and the rule of law In the past, international law appeared to some A move away from to be composed of rules of convenience, auto-interpretation subject to the ever-changing interests of the state. The international constitutional order The constituents of the international system has addressed this problem by developing a retain, of course, considerable freedom in system of rules governing the stability of inter- structuring their relations with other actors national obligations. This development has within the overall bounds of the international taken place in large part through the work of constitution. However, any actor is at all times the ILC, which has addressed the law of treaties entitled to insist on the application of legal and that of responsibility of states for inter- rules in relation to all other actors. In par- nationally wrongful acts. While some legal ticular, all actors have a right to have disputes regimes are immune from challenges (stab- with other actors decided on the basis of law, ility of borders) on account of changing rather than on considerations that might be circumstances, a cautious balancing of inter- advanced by the other party. Even an actor est can take place in relation to those where which itself has violated essential principles of continuous performance of previously estab- the universal constitutional order is entitled lished obligations would be manifestly un- to the protection of its fundamental principles. reasonable. Hence, by regulating the possible For instance, a state that has violated the pro- accommodation of changing interests, the hibition of the use of force remains protected stability of legal rules has been enhanced more by the rule of proportionality, which must generally. The previously fairly open doctrines govern the collective security response trig- of fortuitous event, force majeure, distress, gered by its conduct. Humanitarian princi- necessity and rebus sic stantibus have been tamed ples also remain in operation in relation to through this codiﬁcation, which subjected that state, and its constituents. Individuals who them to the general principle of pacta sunt commit international crimes retain the right servanda. to insist that they themselves do not suffer from 190 9780415418768_4_012.qxd 26/11/2008 02:37PM Page 191

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violations of their non-derogable human significantly reducing the ability of states to rights, such as the freedom from torture or evade their legal obligations (Vicuña 2004; the right to a fair trial. Warioba 2001; Watts 2001). Of course, traditionally it was a significant Moreover, other means of providing structural deficit of the modern international authoritative guidance on the existence and order that there existed no comprehensive, extent of international obligations are con- compulsory jurisdiction. This meant that stantly being added and developed, be they all disputes, of whatever kind, not settled U.N. or treaty-based specialist committees on through some other means, would ultim- human rights or other types of obligations, ately be subject to the jurisdiction of a High Commissioners with remits over cer- particular court or tribunal, such as the tain subjects, joint consultative commissions, International Court of Justice at The Hague. and so on. Furthermore, many of these mech- This deficit has not yet been rectified anisms are accessible not only to states but to through a universal obligation to submit all other constituents as well, including indivi- disputes not settled elsewhere. The Statute of duals, groups, minorities, non-governmental the International Court of Justice contains organizations and multinational companies. an optional clause, permitting states to declare that they submit to the jurisdiction of the Enforcement techniques Court in relation to any other state making a similar declaration. With the exception of matters concerning With the end of the Cold War, the num- international peace and security, there is no ber of submissions to this clause rose signific- centralized international enforcement system. antly, to its present number of 65 (although Even where international peace and security some declarations are restricted through cer- is concerned, allegations of double standards tain reservations). However, perhaps more and selectivity in the practice of the U.N. important is the proliferation of international Security Council remain relevant. Sugges- conventions that now come equipped with tions of reining in the application of the veto dispute settlement clauses. Many of these con- in the Security Councils through certain ventions refer disputes relating to their inter- procedural innovations have not borne fruit. pretation or application to the jurisdiction Instead, the use of force against Iraq in 2003 of the World Court. Others will provide for undermined the primacy of the Council in conciliation or arbitration. Indeed, several this respect. On the other hand, in instances universal sectoral (U.N. Convention on the where the attitudes of the permanent mem- Law of the Sea) or regional instruments bers have permitted it, the Council has come equipped with their own court or tri- engaged in an impressive series of actions. It bunal (for example, the European Court of has taken action in around 30 cases of inter- Justice). Indeed, this development has been nal armed conflict or humanitarian emergency, so pronounced that there is now debate over expanding its remit through such engage- the risk of divergent jurisprudence emerging ment. Moreover, it did fulfill its enforcement from this multitude of dispute settlement role, to an extent, in relation to the Kuwait mechanisms. It is also to be noted that inter- crisis – the instance that was taken by some nationalized arbitrations between govern- to define collective security within a new mental and non-governmental (commercial) constitutionally-based world order. In addi- actors are on the rise. Hence, instead of tion, it has addressed new security challenges, having achieved comprehensive compulsory such as international terrorism in the wake dispute settlement through one World Court, of the 9/11 attack, and it has found new we are moving towards an ever denser net- modalities of action, including increasingly work of dispute settlement mechanisms, sophisticated sanctions regimes and other 191 9780415418768_4_012.qxd 26/11/2008 02:37PM Page 192

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enforcement measures. These include the functions and powers that remove them establishment of a border demarcation from such supervision. In fact, it is not commission, disarmament commissions, possible in this short article to give even a flavor very significant post-conflict state-building of the vast expansion of the role of inter- operations and the establishment of two ad hoc national institutions, including the rise of very international criminal tribunals. powerful non-governmental organizations, Of course, it is a mistake to focus prin- some of which have started to engage in the cipally or exclusively on the area of the use of exercise of public functions. force when considering international enforce- The executive functions of public inter- ment mechanisms. In the area of routine national organizations are already well known international interaction, the proliferation of to scholars and practitioners. Obvious ex- international dispute settlement bodies noted amples include the European Commission, the above has contributed significantly to the activities of the International Atomic Energy implementation of international obligations. Agency, and the various U.N. High Com- Where such a body has made an authorita- missioners and Special Rapporteurs charged tive pronouncement on the law in any given with implementing mandates derived from the case, instances of non-compliance have United Nations or regional organizations, remained very rare. The expanding reach of including the Organization for Security and international jurisdiction has therefore sub- Cooperation in Europe. The range of exec- stantially reduced the classical problems utive functions of such institutions can be very within international law of auto-interpretation extensive and include the authority to take and of auto-enforcement. Traditionally, and to implement public decisions, at times international law provided for the oppor- in the absence of the consent of states, of other tunity of self-help through the doctrine of international actors, or of the individuals at reprisal, or counter-measures. In a prolonged whom the decision is directed. debate, the ILC came close to proposing the The authority of such institutions has virtual abolition of counter-measures by generally expanded beyond that which was attaching to their application the submission originally provided for in the constitutional of the dispute in question to third party settle- documents that created them. The doctrines ment. In the final version of the ILC text on of implied powers and the presumption of the state responsibility this vision could not be intra vires nature of decisions adopted by maintained. However, the conditions for the organs of international institutions led to an adoption of counter-measures were stated in autonomous expansion of the public auth- very restrictive terms, including the obliga- ority exercised by them, not only in respect tion not to infringe on the essential rules of executive action but also in respect of the of international constitutional standing in creation of legal regulation that is opposable the process. to the members of the institutions. In fact, there have been cases where institutions, rather than individuals or even Institutions states, have created other institutions that might themselves exercise significant powers. The The ever-expanding reach of substantive establishment of the Iraq Claims Tribunals, the legal regulation is paralleled by a growth in Iraq Boundary Delimitation Commission international institutions to administer this and the Yugoslavia and Rwanda Criminal developing body of law. Of course, many Tribunals furnishes perhaps the most striking international institutions remain very much example of this practice. These institutions also under the control of member governments. illustrate the fact that international organiza- However, other institutions have developed tions no longer operate exclusively within one 192 9780415418768_4_012.qxd 26/11/2008 02:37PM Page 193

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layer of substantive universal competence. It must be noted, however, that the rapid Such institutions will not only address other growth in the exercise of constitutional func- institutions, but will interact across the uni- tions by international institutions has not versal system, with states, companies, NGOs only undermined the classic or even modern and individuals. Some institutions will take paradigm of international relations, but also decisions which pierce through layers of poses difficulties for the emerging universal public authority and are directly applicable constitution. Precisely because these institu- to individuals, companies and other actors. In tions have arrogated so much authority for the examples just mentioned, the exercise of themselves, it will soon become a constitu- public functions by international institutions tional necessity to contemplate ways to ensure directly interferes with, and partially dis- that their activities are indeed based on a grant places, state competence, precisely in the of authority by their constituents, and that they areas of their so-called “exclusive domestic comply with the rule of law and operate trans- jurisdiction.” parently and in a publicly accountable way. The functioning of the United Nations Security Council and of regional organizations and mechanisms is now gradually being Conclusion placed within the context of the substantive law of constitutional standing. Instead of It is not possible to list all of the recent devel- open-ended powers to respond to threats opments relating to the emerging constitutional to the peace, these institutions are gradually order within the confines of such a short becoming enmeshed within the constitu- chapter. Nevertheless, even this brief survey tional administration of the collective response might help to establish that there exists a to jus cogens violations. gradual movement towards a universal con- The actions of international institutions stitutional system which can be described also contribute in an important way to the and analyzed in legal terms. Such a change identification of other rules of law, either in is unavoidable, in the light of the collapse of the general interpretation of, or in applica- traditional concepts of essential importance to tion to, concrete circumstances. Some insti- the classical, or even the modern, international tutions have been endowed with, or have system, especially the doctrine of unipolar arrogated to themselves without a specific grant sovereignty. of authority, the power to take a legally bind- The proliferation of constitutionally ing decision of a judicial or quasi-judicial empowered actors other than the state will character. The proliferation of institutions make it necessary to create structures to dedicated specifically to the authoritative manage their participation in the system identification of facts and law and the settle- effectively. This relates to the law-making ment of disputes has already been alluded to. process, to the process of authoritatively The vast importance of institution-building identifying legal obligations, including their in relation also to the development of sub- general content and the concrete circum- stantive legal standards has recently been stances of their implementation, and to the demonstrated by the transformation of the mechanisms for ensuring compliance with such Conference on Security and Cooperation obligations. in Europe into the organization it is today, In addition to the redistribution of and by the creation of the WTO. The latter authority away from the state, the need for case demonstrates with great force the funda- genuinely global approaches to global mentally norm-creating function of institu- problems will foster a climate for the devel- tionalized cooperation among actors, including opment of the international system into a uni- increasingly non-state actors. versal constitutional system. In this context, 193 9780415418768_4_012.qxd 26/11/2008 02:37PM Page 194

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the increased role of international institutions inter-state), rather than global, constitution- in the administration of constitutional processes alism. That process of constitution building will reinforce and accelerate the development is being sustained through the activities of of formal and material constitutional law. traditional and non-traditional actors within However, there will remain the difficult the system, often in a haphazard, semi- challenge of ensuring the rule of law, trans- conscious way. However, the melting away parency and accountability at all levels of of the modern state system into a regime of public administration. The subordination increasingly complex structures of relative of all levels of public authority, including authority or competence will make the international institutions, to the rule of law definite and intellectually organized transition and democratic accountability will be a key towards a universal constitutional system element in this process. The ordering of unavoidable. In fact, many of the relevant the respective competences of the emerging actors are beginning to come to the Allottian actors, in terms of their geographic scope, their realization that they are already engaged in the subject matter, the other constituents to creation of just such a system. which the competences relate, the hierarchy of obligations, and so on, will also require a significant intellectual effort. Notes Of course, the process of constitution building will not be a linear one, nor is it 1 The origin, or rediscovery, of this doctrine in necessarily a conscious one. In this phase of international law may be traced back to Sir Hersh global reordering, some actors have actually Lauterpacht’s work on “The Grotian Tradition” reverted to patterns of conduct which would in the field. The communitarian view was also significantly developed by leading German be more comfortably situated within the scholars, such as Hermann Mosler and, most classical paradigm of international relations recently, Christian Tomuschat. The latter than in a post-modern concept of a constitu- argued for this extension of communitarianism tional order. Some of the advances in the into constitutionalism in extenso in his ground- architecture of the international system were breaking Hague Academy Lectures of 1974, a concept which he developed in his later work not intended as the building blocks of the (1997). In the IR field, it is of course Hedley emerging constitution, but rather as pragmatic Bull, followed by David Held, who are associ- solutions to immediate and practical problems. ated with the gentle ‘English school’ approach These developments furnish the elements, as to, initially, international society, and then the it were, of an unconsciously or intuitively international community. 2 Of course, Philip Allott is right to point out that derived architecture for the future, and much idealist perspectives are entirely appropriate of the practice which evidences the emergence and valid approaches, given the transformative of constitutional structures is still being con- power of law and legal studies. ducted from the perspective of the modern, 3 Those who denied the legal quality of interstate-based system. national law would ordinarily do this on the basis of the Austinian definition of law as a command We are therefore at an intermediate stage backed by a sanction, arguing that the lack of in the development of the international con- institutionalized enforcement precluded the stitutional order, one of international (or legal quality of international law.

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13 Law and force in the twenty-first century

Gerry Simpson

In this chapter, the law of force (or the ius ad replied: “I honestly believe that every bellum) is represented as the performance of an argu- country ought to do what it wants to do . . . ment between three competing and potent visions it is either proud of itself or less proud of of international legal order. These can be charac- itself.”1 Some days later, at his Sedgefield terized as an absolutist view that seeks to approach constituency, former British Prime Min- war and peace through non-negotiable, universal- ister, Tony Blair, announced the end of the izable and unqualified moral truths, a sovereign- Westphalian era of international relations.2 tist perspective that holds the desires or fears of the It was time, according to Blair, to usher in a sovereign to be the single source of legitimacy in assess- new interventionist period in which force ing decisions to go to war or engage in diplomacy would be used to avert or end humanitarian and (an occasionally militant) legal pacifism that catastrophe: “I was already reaching for a wants to use law to abolish war. This may help different philosophy in international rela- account for the law’s thematic ambiguities, its tex- tions from a traditional one that has held tual evasions, its judicial agonies and its interminable sway since the treaty of Westphalia in 1648; crises. It may explain also why its primary organs namely that a country’s internal affairs are repeatedly move from institutional paralysis to hyper- for it” (Blair 2004). activism and back. The Iraq war, for example, rather The United Nations Charter in Article 2(4) than being viewed as an extraordinary challenge to prohibits the use of force among states and the future of international law, can be reinterpreted, the Charter’s preamble speaks of eliminating in these terms, as part of the perpetual crisis of law, the scourge of war altogether. International war and peace. law, indeed, may be associated in the public mind with a form of pacifism. To be on the side of international law is to be on the side Three fantasies of peace, or, at the very least, the peaceful resolution of disputes.3 This legalist–utopian On February 6, 2004 in the German city of insistence on the virtues of peace is pervasive Munich, Donald Rumsfeld, then Secretary but it co-exists in international relations and, of Defence in the Bush Administration, was more importantly, in our intuitions about secu- asked during a press conference whether rity and survival, with two other fantasies. In there is a code of international rules. He one, war is imagined as a radical solution to 197 9780415418768_4_013.qxd 26/11/2008 02:38PM Page 198

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the problem of social evil. Tony Blair’s Sedge- Thomas Franck asked “Who killed Article field speech and his whole humanitarian- 2(4)?” (Franck 1970). According to this view, military ethos, first articulated in Chicago in there are myriad possible perpetrators (they 1999, are built around this idea (Blair 1999). include the great powers, “sovereignty”, So, too, in a different vein is George Bush’s political cynicism and the lack of a com- war on terror, a self-conscious and publicly munity or society in international relations). proclaimed effort to destroy all those who In the end, even the most ardent interna- would do evil (or commit (certain) acts of tionalist begins to ask: Who would want to terrorism) (U.S. National Security Strategy keep it alive? 2002). The second fantasy is reflected in In this chapter, I want to represent the law Donald Rumsfeld’s response to his European of force (or the ius ad bellum) a little differ- interlocutors. Here, sovereignty is anterior to, ently and, perhaps more representatively, as prior to and transcendent of any concepts of the performance of an argument between these community or law or obligation. War is a three competing and potent visions of inter- question of pride (or, vanity) or strategic national and social order sketched earlier. calculation or revenge, or the product of These can be characterized as an absolutist some neurotic urge. Whatever the case, sov- view that seeks to approach war and peace ereignty is its own justification; there is no through non-negotiable, universalizable and normative universe outside the state or its unqualified moral truths, a sovereigntist per- elite capable of reining its (often violent) spective that holds the desires or fears of the appetites. This sovereigntism sometimes is sovereign to be the single source of legitimacy combined with a knowing realism about in assessing decisions to go to war or engage the true nature of international relations in diplomacy and (an occasionally militant) (Hobbesian) and the inclinations of nation legal pacifism that wants to use law to states (cold hearted monsters). As Churchill abolish war. These three are ideal types, of put it: course. Most scholars, for example, tend to offer some combination of the three ap- War is too foolish, too fantastic, to be proaches in their work (e.g. Cassese 1999). thought of in the 20th Century . . . civilisa- It is important, however, to understand the tion has climbed above such perils ...the ius ad bellum as embedding, articulating and interdependence of nations . . . the sense of accommodating these three sets of claims. This public law have rendered such nightmares impossible. Are you quite sure? It would be may help account for the law’s thematic a pity to be wrong. ambiguities, its textual evasions, its judicial (Woodward 2007: 44) agonies and its interminable crises. It may explain also why its primary organs re- Often, the debate about the use of force is peatedly move from institutional paralysis conducted in terms of a contest between inter- to hyper-activism and back. The Iraq war, national law’s commitments to peace and con- for example, rather than being viewed as straint, and a world of violence and politics an extraordinary challenge to the future of in which law struggles for footing. Most often, international law, can be reinterpreted as this image is accompanied by a sense that law part of the perpetual crisis of law, war and is weak and ineffectual (but the product peace. of essentially decent inclinations). Arrayed To put this a different way, because wars against this timid repository of our best are occasions for national invigoration, polit- hopes and most creative ideas are the brute ical reinvention or personal heroism as well conditions of international anarchy and the as moments of collective horror, mass psychosis programmatic impulses of charismatic lead- and individualized evil, it is not at all clear ers and exceptionalist nation states. In 1970, what we want to do with, and about, war. 198 9780415418768_4_013.qxd 26/11/2008 02:38PM Page 199

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Public international law, while it promises of the Versailles Peace Treaty proposed the the resolution of this angst, is instead an ex- arraignment of the Kaiser on charges of hav- pression of it. This angst is found in three ing initiated a war of aggression or a war against doctrinal debates concerning the regulation the sanctity of treaties; the trial did not take of force and violence in the international place (largely because of the refusal by the system. These revolve around, first, the Dutch government to surrender the Kaiser nature of the prohibition itself (what exactly to the victorious Allies). The international is made illegal by the UN Charter and law position is best articulated, however, by customary international law?), second, the a commission on the authorship of the war limit and extent of the right to use force in (established by the Versailles delegates and self-defense and, third, the parameters of made up of a group of diplomats and emin- properly authorized collective or individual ent international lawyers) (Commission on action (including the validity and desirability Responsibilities 1920). This Commission of wars for humanity (or humanitarian inter- states, in its final report, that the criminal- ventions)). This chapter will consider each of ization of war is novel and unprecedented, these in turn. and has no place under international law. War is to be left to the judgment of history and conscience; states do what they must Prohibiting force, permitting do and the consequences are a matter for violence sovereigns and philosophers not lawyers (the Commission was particularly keen to preserve In 1907 the international community of the immunity of these sovereigns). states, under the influence of Latin American The interwar period was marked by a series nations anxious about the regional ambitions of haphazard initiatives largely made up of of the United States, resolved to outlaw a par- unequivocal prohibitions lacking status (a ticular form of violence in the international draft League of Nations Treaty of Mutual system. The Hague Convention Respecting the Assistance in 1923) or treaties with some Limitation of the Employment of Force for the force that, nonetheless have an ambiguity Recovery of Contract Debts made it unlawful at their heart (the Kellogg–Briand Peace Pact for states to use military force against each outlawing recourse to war but omitting to other for the purposes of securing repayment delineate any possible exceptions based on of outstanding loans (contract debts). This self-defense: the inclusion of self-defense fin-de-siècle moment of legal regulation being unnecessary according to Kellogg– marks the opening move in a century-long Briand’s American sponsors because it was project to outlaw certain types of violence. self-evident that sovereigns could use violence Of course, the significance of the 1907 Con- to defend themselves, see discussion, infra). vention lies, also, in the narrowness of its The year 1945, then, was a constitutional range of operations; most uses of force re- moment for law and force. At Nuremberg, mained perfectly lawful and indeed, the the IMT declared war of aggression to be the 1907 Convention can be reread as impos- supreme international crime, one “containing a duty to attempt arbitration prior to ing the accumulated evil of the whole”. This embarking on a reparative war. time, in a reversal of the Commission on Most interstate force at this time was Responsibilities at Versailles, rather than still constrained only by the inclinations of insisting that law vacate authority to ethics, sovereignty or the prerogatives of con- the conscience of mankind demanded that science. This was made explicit at Versailles the law criminalize war. The IMT Charter with the ill-starred attempt to criminalize war Article 6 made it a crime “to plan, prepare, (or at least certain types of war). Article 227 initiate or wage a war of aggression or wars 199 9780415418768_4_013.qxd 26/11/2008 02:38PM Page 200

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in contravention of international treaties”. The of these provisions. For example, in the case formula is repeated in the Charter of the of the UN Charter, it is not clear the extent International Military Tribunal for the Far to which the qualifiers “territorial integrity and East, Article 6(a) and in Law No. 10 of the political independence” have real interpretive Control Council for Germany (20 Decem- purchase. Did the Israeli raid on Entebbe ber 1945) and restated in subsequent UN Airport in Kampala (to free hostages taken by General Assembly resolutions in 1965, 1970 a Palestinian group) in 1976 have an adverse and 1974. effect on Ugandan integrity and independ- At San Francisco, meanwhile, the newly ence? Many legal experts took the view that created UN Charter contains a prohibition on this action fell foul of Article 2(4) but the the use of force (and a preference for pacific US, for example, in debates at the Security forms of dispute resolution) at its center. Article Council, emphasized the limited nature of the 2(4) makes it unlawful for member states to intervention as a way of excusing it (Gray use force against the territorial integrity and 2004: 30). Similarly, was the 2003 war in political independence of other states or in Iraq an effort to restore Iraq’s political inde- any manner contrary to the principles and pendence (by removing a tyrant) (Soefer purposes of the UN Charter. This provision 2003)? Or was it an egregious breach of that has become part of customary international independence (the imposition of foreign- law and is regarded as a norm of ius cogens, emplaced government to replace an indi- (Nicaragua, para. 190) applying to non- genous one?) (Sands 2006). Then there is member states also. the question of scale and intensity. How is Article 2(4) is a bold statement for an the provision to be interpreted in such a international system where military force way as to avoid its application to trivial cases had hitherto been a sovereign prerogative. of force while at the same time maintain- But it is striking how much violence is left ing its integrity (this is an issue taken up in untouched by Article 2(4). This article (and the discussion of self-defense)? Thomas its twin at Nuremberg) are directed at a Franck has considered these questions in particular and, increasingly, marginal genus his illuminating discussion of legitimacy of violence involving the formally invasive (Franck 1990). The problem for interna- war making of sovereign states against one tional lawyers lies in coming up with prohi- another. Article 2(4) has nothing to say bitions that offer clarity and flexibility at the about wars conducted by states against their same time. The twin dangers of the idiot rule own populations (e.g. Guatemala, 1960–96, (the rule that allows for no margin of appre- Rwanda, 1994), or about wars within states ciation, the norm that looks foolish if applied between two or more collective groups rigidly to a complex moral problem) and the (e.g. conflict between Bosnian Croats and vague rule (the rule that allows for myriad Bosnian Serbs within Bosnia-Herzegovina) exceptions, provides for every possible or wars between the state and internal nuance and ends up emptied of content) are armed opposition (sometimes with a self- with us at all times in this area. determination cast) (e.g. Biafra 1967–70). Neither is Article 2(4) concerned with the sorts of violence perpetrated on human beings under Self-defense, armed attack repressive economic orders or because of the maldistribution of economic goods within the The law of self-defense, too, is constructed global political order.4 around the dilemmas of sovereignty, law and Even in the case of its putative field of appli- virtue. The legalist–utopian fantasy of abol- cation, interstate war, there is, inevitably, an ishing war confronts, at the same time, the elasticity at the margins (sometimes at the core) necessity of defending the state and statism in 200 9780415418768_4_013.qxd 26/11/2008 02:38PM Page 201

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its abstract formal sense (Koskenniemi 1991) humanity. Yet, always self-defense and the and the intuition that some state-based ideo- requirements of sovereignty were in the logical projects are worth defending and background threatening to unpick the near others are not (Rawls 1999; Tesón 1992). complete prohibition. Famously, then, the Prior to 1945, self-defense was an unstated Court stated it could not “conclude defin- exception to any principle making war un- itively whether the threat or use of nuclear lawful. Curiously, self-defense pre-dates the weapons would be lawful or unlawful in an prohibition itself, receiving what is regarded extreme circumstance of self-defence, in as its first thorough diplomatic airing in an which the very survival of the state would exchange of letters between Lord Ashburton be at stake” (Nuclear Weapons 1996: para 105, (the British Foreign Secretary) and Daniel disposatif E). The Court was engaged in a Webster (the American Secretary of State) in tragic struggle to reconcile an overwhelming 1837. This came to be known as the Caroline human instinct (for survival, for humanity, Incident, an early instance of a purported for law) with the potent formulations of exercise of preemptive self-defense against sovereignty. the activities of terrorist non-state actors. This assumption that self-defense is some- The US and the UK, while disagreeing on the how present (and therefore not requiring specific case (involving the destruction, by articulation) in a way that the prohibition the British, of a Canadian rebel ship operating itself is not, is found in Article 51 of the from US waters and alleged to be engaged UN Charter: “Nothing in the present Charter in an attack on British interests in British shall impair the inherent right of individual North America (Canada)), arrived at a joint or collective self-defence if an armed attack oc- declaration as to the content of self-defense. curs against a Member of the United Nations.” Such action was permitted in cases involv- The word “inherent” has generated a fair ing “a necessity for self-defence, instant, bit of commentary. In Nicaragua, it was used overwhelming, leaving no choice of means to establish that the law on the use of force and no moment of deliberation”. This case was part of customary international law continues to exercise power over the legal independent of the Charter itself (this was ( Jennings 1938) and political (US National important for the purpose of escaping the US Security Strategy 2002) imagination. reservation to its declaration accepting the If Caroline elaborates a principle of con- jurisdiction of the International Court). In the straint, then almost a century later, Kellogg– work of many expansionists (those who wish Briand’s silence around self-defense was just to extend the right to self-defense), it is used as eloquent. The renunciation of war as a to justify readings of self-defense that take it means of settling disputes and as a national some way beyond the text of Article 51 itself policy choice was unaccompanied by any (Bowett, 1958) and, more radically, it preserves qualification in regard to self-defense. For the idea that sovereignty is prior to law, that the Americans, at least, such a reference was the natural right to use force in self-defense otiose. The right to self-defense, an inherent pre-exists the law of self-defense. sovereign prerogative, was simply a fact of Of course, there are sovereigntists who take international political life. This rendering the view that some aspects of self-defense are of self-defense as simply “there” – a fact of beyond law (there is a hint of this in Nuclear sovereignty – was restated 70 years later in the Weapons). Dean Acheson said of the Cuban Nuclear Weapons case. The ICJ, contemplat- Missile Crisis: ing the legality of nuclear devices, found it difficult to conceive of an instance in which The power, position and prestige of the such weapons could be used without offend- United States had been challenged by ing principles of proportionality, necessity and another state; and the law does not deal with 201 9780415418768_4_013.qxd 26/11/2008 02:38PM Page 202

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such questions of ultimate power – power that violence (particularly the sorts of collective self- comes close to the sources of sovereignty. defense that might have the effect of widen- (Acheson 1963b) ing a conflict). The Court, however, has been criticized (sometimes ridiculed) for making Mostly, however, contours of the relation- these distinctions (Higgins 1994). ship of law, sovereignty and virtue are con- On the one hand, this could be charac- ducted through legal texts and discourse. terized as a contest between a restrictionist The central doctrinal debates in relation to self- tendency (present among judges at the ICJ) defense turn respectively on the definition to reduce the scope for legitimate interstate of an “armed attack”, the constraints on any violence as much as possible, and an expan- response to an armed attack (implicating ques- sionist effort to limit the constraints on tions of “necessity” and “proportionality”), the defensive force or maximize the range of extent of any right to use force preemptively permissible responses to threats and infringe- and the existence of a right to exercise force ments. But, on the other hand, this debate against non-state actors (particularly those is also about the relationship between and located in foreign state territory). among sovereigns (Koskenniemi 2002). In order to activate a right to use force in These struggles re-emerge in three fur- self-defense, there must be an armed attack ther doctrinal debates. In Oil Platforms, the (Oil Platforms: paras 51, 61–64 and 72; Court found that any use of force in self- Nicaragua: para. 195) or, at least the immin- defense must be “necessary and proportion- ent threat of one. What, though, is an ate” (Oil Platforms: para. 51). This was held “armed attack”? The consensus appears to be to be a “rule of customary international law” in favor of requiring the use of military force (Legality of Nuclear Weapons: para. 41). The of a certain degree of intensity (Nicaragua: 191 Nicaragua court, rather unhelpfully, emphas- and 195; Oil Platforms: 63–64; Brownlie ized that action in self-defense ought to be 1963: 278) against a state’s territory, armed “proportional to the armed attack and neces- forces or embassies (and in the absence of that sary to respond to it” (Nicaragua: para. 176). state’s consent) and the existence of some sort Necessity, then, refers both to the lack of a of intention on the part of the attacking state reasonable alternative means of ending or to bend the target state to its will (Chatham averting the attack and the reasonableness of House Report 2005: 5). The aim, then, is to the military measures taken. exclude minor or trivial uses of cross-border This rule was given some elaboration in the force (a rifle fired across a frontier) as well discussion of the US attack on the Iranian oil as more substantial but accidental infringe- installations in 1986 and 1988. Here, the Court ments of territory (inadvertent overflights found that this use of force was dispropor- by military aircraft or missiles). In Nicaragua, tionate because Operation Praying Mantis the ICJ made further, and more contentious, (encompassing widespread attacks on Iranian distinctions between “uses of force” (arming interests) was an incommensurate response to and sending irregulars or rebels into foreign a single assault on one US ship, which dam- territories) and “armed attacks” (invasions or aged but did not sink the ship, killed no US the arming and sending of irregulars when such personnel and was of unknown origin (Oil action acquired the gravity of an armed Platforms: para. 77). The Court found, too, that attack). The Court held that only the latter there was a lack of necessity for the attacks gave rise to a right to self-defense. These, (they were not required to prevent Iranian apparently, semantic distinctions accord with mining of the Straits, there were no demands the different language used in Article 2(4) and made to the Iranians requiring them to cease Article 51 of the UN Charter and they are employing force from the platforms and attempts to restrict the latitude for responsive some of the US attacks had been merely 202 9780415418768_4_013.qxd 26/11/2008 02:38PM Page 203

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“opportunistic”). The Court rejected also the or failed to take reasonable measures to pre- US argument in this case that there is a vent, such activities. In each of these cases, “measure of discretion” when undertaking the exercise of self-defense is uncontroversial. good faith evaluations of essential interests The difficult case occurs when there is an (Oil Platforms: para. 73). For the Court, such armed attack emanating from a state territory evaluations were not a matter of subjective where that state does not incur state respon- tests (para. 43) but law. sibility for the attack (i.e. the actions of the Questions of proportionality and necessity, non-state group cannot be attributed to the however, are most often auto-interpretive state in question). Again, two views emerge. thereby affording precisely this sort of dis- One group of commentators and judges cretion. There always will be a clash of point to the problems inherent in permitting sovereigns or a conflict between restriction- a use of military force in self-defense against ist and expansive reading of the law. In the a state that has committed no wrong under case of the Afghanistan intervention, some international law (Armed Activities 2005: scholars (viewing the matter from the per- 146–7). Another group wonders how it can spective of Afghan sovereignty) argued that be that the necessity of self-defense can turn the invasion and occupation of a whole on the responsibility of the host state rather country could not possibly be proportionate than the sovereign rights of the attacked state to the destruction of two buildings in New (Chatham House 2005: 8; Armed Activities, York City (e.g. Myjer and White: 2002). Separate Opinion of Judge Simma: 7–12). This Another group of scholars argued that latter view suggests that if it is necessary for proportionality and necessity had to be con- the US to invade Afghanistan in order to sidered from the perspective of the attacked prevent further attacks on US territory, then state (e.g. Lowe, Chatham House 2005: 44). such force constitutes lawful self-defense. For the United States, it appeared perfectly Once again, though, it is unclear how such reasonable to occupy the country in order to a dilemma ought to be resolved from within eliminate the Taliban, a government that had a legal tradition in which there is an allergy given succour to the group responsible for the to choosing one set of sovereign rights over attack on the Twin Towers. It is difficult to another. know how such arguments about propor- The final doctrinal debate concerns pre- tionality and necessity ought to be resolved emptive self-defense. The Bush administra- except by courts making the sorts of some- tion placed this debate center-stage with its times arbitrary and assertive judgments National Security Strategy initiative in 2002 found in some ICJ jurisprudence on the but lawyers have wrestled with this problem matter. since, at least, the Caroline case. Strict con- A second doctrinal debate has been pre- structionists have argued that since Article 51 occupied with the relationship between permits self-defense only when there is an Afghanistan’s responsibility for the attacks on “armed attack”, there can be no right to use the United States and the US right to use force force in anticipation of an armed attack. This in self-defense against terrorists operating position has been seriously eroded from at least from Afghan territory. In relation to terror- three directions. Another group of textualists ism and state responsibility generally, there are have argued that the word “inherent” in two relatively straightforward cases and one Article 51 incorporates either a pre-existing much more complicated matter. The two right to anticipatory self-defense (Caroline) or simple cases involve terrorists operating from an equivalent post-1945 customary right. non-sovereign territory (e.g. outer space or, Others have argued that an “armed attack” more likely, the high seas) or from bases in a begins from the moment a decision to use force state where that state has actively supported, has been made or from the moment such 203 9780415418768_4_013.qxd 26/11/2008 02:38PM Page 204

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a use of force has become imminent (this spective of preemption. What counted was collapses altogether the distinction between the possibility or probability of Iraq emerg- self-defense and anticipatory self-defense) ing at some point in the future as a threat to (Dinstein 2001: 172). US security. The preemptive war was about Finally, there are those who have taken Saddam’s psychology not Iraq’s current a pragmatic or “policy-oriented” approach capability. to argue that the advent of nuclear weaponry Needless to say, this invocation of a rather or the speed of modern armies or some rad- distant prospect of emerging danger failed ical change of circumstances have made it to attract many adherents to the idea of pre- impossible to reject a right to anticipatory self- emption in Iraq. No doubt, the current defense. In each case, however, the formula weight of legal opinion favors heavily the for anticipatory self-defense has been yoked to existence of a right to anticipatory self- a finding of imminence and this, in turn, has defense in cases of imminent attack (this has been linked to some notion of immediacy or been confirmed in the Secretary-General’s temporal proximity. In Larger Freedom Report 2005: para. 124) or The Bush Doctrine departed from all of “irreversible emergency” (Chatham House these traditions to develop an expanded idea 2005: 5) but there is precious little support of self-defense based on preventative war. for any expanded right to engage in preven- As President Bush put it in his West Point tative wars (a short-lived and roundly con- speech in 2002: “We must take the battle to demned “Howard Doctrine” says something the enemy, disrupt his plans, and confront the about the status of this form of self-defense; worst threats before they emerge” (Bush more tellingly still, the UK Attorney- 2002b). Imminence remains relevant; indeed General, Peter Goldsmith, condemned the there is considerable effort made to ground doctrine in a statement to the House of Lords the new doctrine in old precedents (notably in April 2004 (UK Attorney General 2004). Caroline): “We must adapt the concept of It may be, of course, that what is being imminent threat to the capabilities and argued for, most often implicitly, by the objectives of . . . rogue states and terrorists.”5 United States in its National Security However, this form of preemptive self- Strategy and by some (largely western) ex- defense relies on a modified version of pansionists are exceptional rights to employ “imminence”. It is no longer the imminence force in self-defense (Simpson and Wheeler of the attack that is controlling but instead 2007). One way to understand the doctrine the likely emergence of an irreversible of self-defense is to see it as constructed around threat. This conception of self-defense is an asymmetrical distribution of rights heavily weighted in favor of the respond- (Simpson 2004). No longer a universal right ing state. This may explain why it suits the to use force when attacked, it becomes a right dominant hegemon. The 2003 intervention subject to expansion when the great powers in Iraq is often cited as an example of the Bush (say, the United States or Russia) act in the Doctrine in practice, although the emphasis name of security, or international community throughout the period immediately prior to or democracy, and contraction when less the war was on issues of collective security. virtuous or powerful states (say, Iran, or Still, it is no doubt true that figures in the Bush Vietnam in 1979) claim to employ it as part administrations and prominent voices in of their repertoire of sovereign rights. The the political and media establishments in the elasticity of the language used makes this ten- US believed this was a test of preemption’s dency less visible than it might otherwise be. credibility (Soafer 2003). In this sense, the It becomes possible both to justify and con- existence or non-existence of WMDs was demn virtually every act. Thus, even relatively somewhat beside the point from the per- sophisticated articulations of the self-defense 204 9780415418768_4_013.qxd 26/11/2008 02:38PM Page 205

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norm, such as those found in the Chatham international peace and security. These House statement, rely on open-ended “measures” might be effected by a state or phrases such as “each case will necessarily turn group of states acting with the authorization on its facts” or “depending on the circum- of the Council or, in the case of military force, stances” and on subjective references to under Article 42, the UN’s own would-be “good faith” (Chatham House 2005: 7–8). standing army (to be established under a UN To conclude, the law of self-defense is a Staff Command in Article 43–47) might painfully constructed abstraction. It embod- deploy to confront an aggressor state. FDR ies an effort to constrain war through law while believed that this system would work best at the same time permitting wars in the name where the great powers acted in concert to of (self-judged) sovereign rights. It purports regulate or discipline a largely disarmed to yield generalizable norms of behavior and world (this was the “Four Policemen” yet has been regularly interpreted to support model). expansive readings where elite powers use A law of unintended consequences began defensive force and restricted readings where to operate almost immediately. Prior to the outlier states respond to perceived aggres- Gulf War in 1991, US–Soviet strategic sions. The law of self-defense is a conversa- rivalry paralyzed the Council and meant tion between legal pacifism (or abolitionism), that a UN standing army could not be sovereign vanity and self-preservation, and created. The Council authorized various the sense that justifications for defensive force activities but these were either exceptional turn, to an extent, on the virtuousness of those Chapter VII interventions (in Korea in employing this form of force. 1950) or consent-based peacekeeping activities not even envisaged by the drafters of the Charter (Congo 1960; Kosovo 1999). Collective security, humanity The Iraq crisis may be regarded in retrospect as a crisis for collective security but Along with self-defense, Security Council- it was an opportunity, too. In 1991 the authorized uses of force represent the other Security Council authorized, in Resolution uncontroversial exception to the prohibi- 678, collective action to expel the Iraqi army tion on non-consensual uses of armed force from Kuwait. A coalition of largely western between states.6 Indeed, the UN founders in forces, acting in combination with the San Francisco envisaged the eventual eclipse Kuwaitis, launched a successful and brief war of self-defense altogether as the Council against Iraq. This was the Charter’s paradigm took full responsibility for international case of collective action: perhaps its only one. security. In fact, the reverse occurred, at least Saddam Hussein’s Iraq was the Charter initially. By the turn of the century, scholars enemy from central casting. The Charter had, such as Michael Reisman were calling for after all, been designed around the idea that expanded forms of unilateralism to compen- there would be no repeat of the inaction of sate for the moribund nature of the collec- the League in the face of the insidious inter- tive security order (Reisman 2000b). war aggressions of middle powers (Italy in This security order, articulated in Chapter Abyssinia, Japan in Manchuria). It was this VII of the Charter, was based on the assump- inaction that was thought to have embold- tion that the Council, on finding that a ened Hitler (this explains the talk of appease- threat to the peace, breach of the peace or ment in relation to Iraq). Saddam’s Iraq act of aggression had occurred (Article 39), precisely was a middle power: weak enough would take measures (first provisional (Art- to be overborne in brief war but powerful icle 40) then coercive (Article 41) and finally enough to pose as a plausible threat to inter- military (Article 42)) to restore or maintain national peace and security. 205 9780415418768_4_013.qxd 26/11/2008 02:38PM Page 206

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The Gulf War in 1991 initiated a change preted as an implicit authorization? Second, in the UN’s self-image and in the potential might it be the case that an intervention ille- uses of collective security. Paradoxically, this gal under the rules of the UN Charter could one paradigm instance of intervention her- still be deemed legitimate because of some alded a shift in Council policy towards all sorts combination of necessity (i.e. the necessity to of action unanticipated at San Francisco and end a humanitarian catastrophe) and Security of debatable constitutionality. In the case of Council condemnation or censure of the Somalia, the Council authorized a human- offending state? itarian intervention, and the war in the For the time being, it is premature to say former Yugoslavia resulted in resolutions that a doctrine of implicit authorization has embroiling the UN in a civil war and the emerged from only a handful of cases (House establishment by the Council, acting under of Commons Foreign Affairs Committee 2000), Chapter VII, of a war crimes tribunal particularly given the opposition of China (Security Council Resolution 827). The and Russia to this interpretation of the Council has in recent years initiated its own resolutions passed shortly before the Kosovo war on terrorism establishing oversight com- war in 1999. Legitimacy, too, is under- mittees (e.g. Resolution 1373) and placing developed (Tom Franck’s The Power of individuals on lists of known terrorists. Most Legitimacy is a notable exception (Franck of this has been politically contentious (is it 1990)) as a norm capable of explaining or prudent for the UN to become engaged in justifying interventions.7 humanitarian interventions (see Blackhawk The war initiated by the “Coalition of the in Somalia) or in civil wars (the Srebrenica Willing” in Iraq in 2003 received very little debacle)?). And, despite the Council’s appar- backing from international lawyers around the ently unconstrained powers in Articles 25 world (a small group of US academics and gov- and Chapter VII of the Charter, there are ernment lawyers defended the war). In this concerns that it may have overreached its case, the problem was one of interpretation constitutional authority (Álvarez 1995; Lock- rather than doctrine. The collective security erbie 1998; Tadic 1995). argument for the war, superbly articulated on The Iraq and Kosovo interventions pre- March 7 by the UK Attorney-General, Lord sented quite different and rather unexpected Goldsmith, in a memorandum that was kept problems for collective security. Up until this from the British people and Cabinet until point, disagreement turned on the desirabil- several years later, turns on the existence of ity of collective security and, in a less visible a resolution (678) expressly authorizing war debate, on the extent of the Security (but passed in 1991) and allegedly revived by Council’s powers under the Charter. Few a later resolution (1441) passed in October questioned whether the Council had auth- 2002. What lawyers, and it is fair to say also orized war in 1950 or in 1994 or in 1991. many politicians, argued over was the form It seemed clear that a combination of the of words contained in Resolution 1441. The appropriate voting pattern and language Americans and British argued that since this (the Council invariably referred to using “all resolution had afforded Iraq “a ﬁnal oppor- necessary measures” in resolutions authoriz- tunity” to comply with earlier resolutions and ing war) would activate a right to intervene. avoid a serious breach of its obligations, and The Kosovo war, however, raised two fur- since Iraq had failed to take the opportunity ther, unexplored, possibilities. First, could a and had continued to be in serious breach, sequence of resolutions characterizing a situ- the US and the UK had been authorized by ation as a threat to the peace but not giving the Council, prospectively, to take action on explicit authorization to use force be inter- March 20, 2003. Put in different terms, the

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original authority contained in Resolution intervention and so on). Cases of possible 678 had been revived by the failure to com- humanitarian interventions were discussed ply with Resolution 1441. The French posi- (Bangladesh 1971, Cambodia 1979) and the tion (shared to an extent by the Russians, the development of a customary right of inter- Chinese and many international lawyers) was vention was mooted. Scholars disagreed and that Resolution 1441 contained no “auto- then they lost interest. maticity” and, indeed, required the Council Twenty years later the Security Council to reconvene to consider Iraq’s behavior. This, intervened to protect civilians in Mogadishu. and the UN’s repeated reference to its pre- This, however, ended badly and there was rogatives on the question of Iraq, made any no significant intervention in the Rwandan unilateral action by a small group of Council genocide. Humanitarian intervention had members acting without a specific, explicit and become a troubling idea. The Security contemporaneous resolution, unlawful. Council had the power to authorize inter- The intensely contested nature of the ventions along these lines but, commonly, Iraq war and collective security in general can lacked the will. States acting unilaterally be explained partly by the existence of the sometimes possessed the inclination but three models of law and war discussed at the lacked legal authority to intervene. Mean- beginning of this chapter. Legalists con- while, argument raged between those eager cerned with the integrity of the Charter and to engage in wars for humanity (Blair 1999), the need to preserve the constraining power those who were worried that this would of law have worried that Council activism has be cover for new variants of hegemony, strayed into areas where the Council has no those who continued to hold on to the idea writ or where the Council has become a tool that sovereignty remained a barrier to such to promote hegemonic ends through war. interventions and those who believed that Sovereigntists, meanwhile, have encouraged concerns about humanity were fraudulent the Council to act in cases where state secur- (as Carl Schmitt put it: “He who invokes ity is threatened but have been less enthusi- humanity cheats” (Schmitt 1996)). astic about more muscular or programmatic In 2000 the International Commission forms of intervention to promote human on State Sovereignty, a Canadian-sponsored rights or counterterrorism. Finally, there is a group of elite policymakers and lawyers, humanitarian–aspirational camp that views published a document outlining a “Respon- the Council as a vanguard organ capable of sibility to protect” (ICISS 2000). This idea pursuing all sorts of designs for enlarged received further elaboration and status in the security or humanity or peace. Secretary-General’s High-Level Panel on These threads have come together over the Threats, Challenges and Change in 2004 and difficult question of humanitarian interven- was endorsed by Kofi Annan himself in his tion. To what extent should the international major reform statement, In Larger Freedom community protect vulnerable populations (2005). The doctrine is grounded in two located in oppressive states? This is an ancient uncontentious propositions and two more question; Grotius and Suarez were each novel formulations. Advocates of a responsib- engaged with it and it has re-emerged at ility to protect argue that sovereign states have different points in the history of international a duty to protect the human rights of their law. In the 1970s international law aca- own citizens (this seems self-evident given demics debated the desirability of unilateral the slew of human rights conventions to humanitarian interventions and developed which states have signed up) and that the “criteria” for interventions (scale of suffering, Security Council has a right to authorize likelihood of success, duration and scope of humanitarian interventions to protect acutely

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vulnerable people (this, too, is unremarkable transformations (the much discussed re- given the language of Chapter VII and, in source wars over oil, water and minerals) particular, Article 39). These two norms, of and political pathologies (the decline of course, give no protection at all to the victims reflective democracy in western industrialized of Rwandan- or Guatemalan-style genocides. nations, the rise of a post-democratic Russia, They are the victims of pathological sov- the increasing military assertiveness of an ereign states (their own sovereign state) and economically emboldened China). How- passive international organizations. The ever, there is an equally significant terrain High-Level Panel, then, suggests two sup- of language and law that will determine how plementary norms. The first provides a duty wars are understood and when they might or responsibility on the part of the inter- be fought. At the beginning of the twenty- national community to take action against first century, it might be said that war has states. In particular, the Security Council is been abolished or that the abolitionist tend- required to engage in a policy analysis, ency has prevailed in Martin Wight’s domain guided by a normative framework, not of eternal recurrence and repetition. But this unlike that developed by the 1970s’ scholars, is not the legalist utopian–pacifism with discussed earlier. The second norm, barely which one branch of international law will adverted to, might permit states to act uni- always be associated. Instead, this termina- laterally where there has been no response tion is a linguistic, rhetorical and juridical from either the host state or the responsible turn embedded in the practice of war and the international organization. repositioning of international legal and polit- This “responsibility to protect” norm is ical institutions (most notably the United preoccupying international lawyers at present Nations). At one level, war as a method of precisely because it draws together the three control has been displaced by political, eco- thematics that form the core thesis of this nomic and cultural hegemonies. To reverse chapter. It negotiates with a legalist pacifism von Clausewitz, politics is the continuation that wants to constrain force through law and of war by other means. More significantly, forbid uses of force whose justification is in some of our linguistic and institutional derived from supervening and highly contested practices, war has become peace. Previously notions of humanity. It offends a sovereign (in some respects) oppositional, the language centrism that insists on the inviolability of of peace has displaced entirely the language borders and is suspicious of the motives and of war. The international community now intentions of the great powers. And, finally, deploys its military forces in peacekeep- it advances a programmatic, cosmopolitan ing, peace building, peace enforcement and conception of community, and furnishes that so on. The great powers, meanwhile, no community with reasons and justifications for longer fight wars but are instead engaged in using military violence to advance or protect what Carl Schmitt called “pest control” its key values. This is the very stuff of the ius (usually termed anti-insurgency operations or ad bellum and represents the past, present and counterterrorism). future of collective security discourse. It has always been the case that such wars have been justified as exceptions to the prohibition on the use of force. Increasingly, Arguing about war however, the policing wars of the contemporary era are regarded as having tran- Law and force in the twenty-first century scended the prohibition altogether. Pacifism, will be shaped to some extent by technolo- sovereignty and humanity are conjoined in a gical developments (computer-attacks, new legal order dedicated to abolishing wars by weaponry, soldier-robots), environmental fighting them. 208 9780415418768_4_013.qxd 26/11/2008 02:38PM Page 209

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Notes tions, human rights standards, the application of war crimes law to internal armed conflict). 1 Donald Rumsfeld at Munich Press Con- 5 National Security Strategy of the United States ference, February 6, 2004 at http://www. (September 2002), part I. guardian.co.uk/comment/story/0,3604,1145413 6 The use of force by invitation of the host gov- ,00.html and http://italy.usembassy.gov/ ernment is deemed to be lawful. See Armed viewer/article.asp?article=/file2004_02/alia/a402 Activities (Congo vs. Uganda) at paras 42–54 for 0905.htm. an interesting discussion of consent or invita- 2 Prime Minister Blair, Speech to Sedgefield tion in this context. Constituency Party, March 5, 2004 at http:// 7 For example, a Whitehall spokesman was politics.guardian.co.uk/iraq/story/0,12956,11629 quoted as saying, in relation to the proposed in- 91,00.html. vasion of Iraq: “What will be important is that 3 Article 33 of the UN Charter obliges states to what we are being told to do has legitimacy. resolve conflicts peacefully. This is a back- Legitimacy can derive not just from a UN man- ground to the more specific prohibitions and date. Lawful and legitimate are not necessarily exceptions found elsewhere. the same thing” (Richard Norton Taylor, 4 Of course, international law has developed to “Threat of war: Blair to order invasion this cover these activities (antiterrorism conven- month: tanks will form the core of British contingent”, The Guardian, October 8, 2002: 12.

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14 The nature of US engagement with international law: making sense of apparent inconsistencies

Shirley V. Scott

The attitude of the US towards international law tually incomprehensible to many observers, often appears full of contradictions, which critics particularly in countries closely allied with the tend to characterize as hypocrisy. This chapter seeks US. The US treatment of detainees during the to move beyond criticism or defense of the nature war on terror, the failure of the Bush admin- of US engagement with international law in order istration to join the new International to make better sense of the apparent inconsisten- Criminal Court, its rejection of the Kyoto cies. Three features of the US engagement are Protocol, and the fact that the US has yet identified and explored: the US uses international to become a party to a number of the key law to disseminate its policy preferences; the US global human rights treaties, are typically seeks to protect its own policy choices and legal interpreted as a sharp divergence from strong system from external influence via international US support for international law in the early law; and, with some provisos, the US takes legal post-Second World War years. Beyond re- obligations seriously. Individually and in com- cognizing that some practices of which the bination, these three factors can help account for US is accused, such as torture – are not open many seemingly anomalous actions or inactions to justification – this chapter does not aim of the US as well as provide a basis on which to to excuse or condemn the US. Rather, the identify elements of change and continuity in the chapter seeks to provide the context within nature of the US engagement with international which to make sense of apparent anomalies law. and to highlight elements of both continuity and change in the US approach towards The United States has in recent years come international law. Three features of the US under considerable criticism for its seemingly engagement are identified and explored: the undesirable attitude towards international US uses international law to disseminate its law. Given that the US is known as a legal- policy preferences; the US seeks to protect istic country whose rhetoric has made much its own law and policy from external influ- of the ideals of democracy and the rule of law, ence via international law; and, with some displays of apparent US disregard for inter- provisos, the US takes legal obligations national law have been disappointing and vir- seriously.

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Is there an identifiable US of the US engagement with international approach to international law? law or whether it is simply a mix of contradictions, excuses, and anomalies. If there There are numerous seeming contradictions appears to have been a shift in the US atti- and anomalies in the US approach to inter- tude towards international law during the national law. The US has long been regarded Bush administration or since the end of the as the leading protector of human rights, but cold war, is it simply a case of the US going the US has ratified few of the major human from being an ardent supporter of interna- rights instruments; the US has supported tional law and its further development to most moves towards international courts and an avoider and spoiler, or is it possible to at tribunals but is rarely prepared to itself be least in part reconcile recent behavior with subject to a third party adjudication; the US traditional US rhetoric and actions highly constitution appears to accord high status to supportive of international law? The objec- international law but the US legal system is tive of this chapter is to try to articulate some in practice relatively closed to the influence of the patterns in the nature of the US en- of international law; and the US refers often gagement with international law so as to make to the importance of the international rule of better sense of the apparent inconsistencies law in its foreign policy rhetoric but does not and changes. always seem to want to support the further Some scholars of IR might object to the development of that system. One of the task of defining a set of characteristics of the most common criticisms of the US in rela- US engagement with international law. Talk tion to international law is that the US is of the US as a single unit might be consid- hypocritical – it does not want to behave in ered problematic because such an approach relation to international law as it tells others appears to be treating the state as a monolithic they should. The US justified its invasion of entity, overlooking the fact that the US Iraq in part on Iraqi non-compliance with includes several branches of government as well international law and yet the US invasion was as numerous interest groups and individuals itself in blatant breach of the international law with strikingly divergent understandings of on the use of force. what international law is all about. While Attempts to explain recent undesirable the fullest explanation at the lowest level of actions of the US in simple dichotomous terms analysis of any specific US action or inac- as a shift from multilateralism to unilateral- tion in relation to international law would ism, or from embracing to rejecting, are undoubtedly be made at the sub-state level, inadequate, for there are always exceptions. it is indeed worthwhile to seek to identify While much recent US action has been of a patterns in US behavior, if only because unilateral nature, there is considerable multi- the US participates in the system of inter- lateral law with which the US still engages national law as a single unit; the United States and, while unilateralism is often referred to is a single “subject” of international law. in negative tones, unilateralism may on Providing a picture of what the US “usually occasion be a positive and effective mode of does” in relation to international law will action. It is difficult to claim that the US has not only facilitate reconciling apparent con- “rejected” international law when in 2006 temporary inconsistencies in US actions but alone it entered into 429 new international will provide a basis on which to discern ele- agreements and treaties (Bellinger 2007). ments of continuity and change over time. The question thus arises as to whether it is Three such characteristics will be defined and possible to identify any patterns in the nature explored.

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The US uses international law national Whaling Commission (Scott 2004b: to disseminate its policy 130–43). The Commission finally agreed preferences to a moratorium on commercial whaling, which took effect in 1986. In 1977 the US The use of international law to disseminate Congress passed the Foreign Corrupt US policy preferences was a very strong Practices Act (FCPA), which was aimed at feature of the international order established curbing overseas bribery of public officials in the wake of the Second World War. In by US corporations. Out of concern that his writing on “liberal hegemony”, John US corporations had been put at a competi- Ikenberry (2000) has emphasized that the tive disadvantage by the FCPA, Congress success of post-1945 US foreign policy owed in 1988 urged the executive branch to neg- much to the spread of international law and otiate prohibitions on bribery within the institutions. In the case of some treaties, such OECD (Glynn, Kobrin and Naím 1997: 19). as the UN Charter and the Antarctic Treaty, This generated the momentum that in 2003 the US provided the draft text. In some gave rise to the UN Convention against instances the draft was based on recent US leg- Corruption. islation and so reflected a shift in US policy. This first identified feature of the US The 1972 Convention on the Prohibition of relationship with international law is one the Development, Production and Stockpil- regarding which there appears to have been ing of Bacteriological (Biological) and Toxin some shift in recent years. Many people Weapons and on Their Destruction followed hoped that the end of the cold war would the unilateral 1969 US announcement that usher in an era of enhanced international co- the US would renounce the possession and operation and reliance on international law. use of lethal and incapacitating biological But in the US there was in some quarters a weapons and destroy its entire stockpile sense that the US, as the sole superpower, (Tucker 2002: 107). The US took unilateral could now achieve its objectives without action in the 1970s to control aerosol emis- incurring formal legal obligations (Taft 2006: sions of CFCs ahead of the negotiation of the 504). A number of academic commentators 1985 Vienna Convention for the Protection in the US have promoted the idea that inter- of the Ozone Layer (Scott 2004a: 268). In a national law is a strategy used by the weak number of cases, international law can thus against the strong, the implication being that be understood to have in effect extended US the most powerful only stand to lose through policy foci to other countries. Negotiations participation in the international legal system have still taken place, but the initiative, the (Rivkin and Casey 2000/2001: 35). This con- issue and approach adopted in the resultant trasts strikingly with the notion of international treaty came from the US. law as an effective means for the powerful The 1972 Marine Mammal Protection to disseminate their policy preferences. Paul Act provided for a moratorium on the tak- Kahn wrote in 2000, for example, that ing of all marine mammals and products “appeals to international law have been one in the United States and prohibited their of the tools available to weaker States in importation. The Act required United States their battles with more powerful states” officials inter alia to endeavor to negotiate a (Kahn 2000: 1). Such ideas have permeated binding international convention that would official thinking. According to the 2005 ensure comprehensive protection for marine National Defense Strategy (at 5): “Our mammals. The US took its new anti- strength as a nation state will continue to be whaling policy to the United Nations challenged by those who employ a strategy Conference on the Human Environment in of the weak using international fora, judicial Stockholm, and from there to the Inter- processes, and terrorism.” 212 9780415418768_4_014.qxd 26/11/2008 02:38PM Page 213

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US use of international law to disseminate they entered the US, and the Proliferation its policy preferences has during the Bush Security Initiative, designed to interdict administration been overshadowed by a ships suspected of carrying WMD and prominent use of non-treaty forms of policy missile-related technologies. The US also dissemination. The Introduction to the 2002 initiated and led a drive to improve interna- US National Security Strategy referred to tional law on the subject. In January 2002 the coalitions of the willing which can “aug- US submitted a proposal to the International ment” longstanding alliances such as the Maritime Organization on measures to UN, the WTO, the OAS and NATO. Critics strengthen maritime security on ships and charge that in the case of Iraq, the “coalition in ports. By the end of that year the Con- of the willing” was not used so much to aug- ference of Contracting Governments to the ment the United Nations but to replace UN International Convention for the Safety of authorization. One significant area of policy Life at Sea had adopted a new International in which the US has drawn on non-treaty Ship and Port Facility Security Code, which forms of cooperation, developing a loose was incorporated as a new Chapter of the 1974 coalition within which it negotiates a series International Convention for the Safety of of bilateral rather than multilateral agree- Life at Sea (SOLAS) (Beckman 2005: 250 ments, is climate change. On July 28, 2005 fn 1). the US, Australia, China, India, Japan, and In acknowledging that the Bush admin- the Republic of Korea presented a “Vision istration has made strong use of non-legal Statement for an Asia-Pacific Partnership mechanisms to disseminate its policy prefer- for Clean Development and Climate”. Al- ences it must be recognized that multilateral though the US denied that what came to be treaties have rarely solved the problems they known as the AP6 and more recently the APP were negotiated to solve. It is true that the was intended as a replacement for Kyoto, the use of ad hoc coalitions and agreements with fact that the Bush administration had cat- no legal status does nothing to further the egorically rejected Kyoto and favored such a development of the system of international law, coalition meant that in practice the US was but it does avoid institutional blockages. The proposing the AP6 as a substitute means of US can limit membership to a small group tackling the issue on a multilateral level. of like-minded states and then expand the The US use of non-law approaches to issues group once momentum has been achieved requiring a collective or widespread response (Byers 2004: 544). Constructing coalitions on has in practice not been an outright rejection an ad hoc basis may be more effective than of law in favor of non-law because non-legal large-scale multilateral treaty approaches, the methods may serve as an impetus to legal de- documented deficiencies of which include velopments and legal and non-legal processes the slow speed of negotiations, the lowest have often been used in conjunction with each common denominator impact of large nego- other. The US reaction to the threat of tiating groups, and creative ambiguity in the maritime terrorism post-9/11 offers a useful treaty text (Kellow 2006: 290). example. The US responded to the height- In some situations in which observers ened awareness of the threat of a maritime ter- might have anticipated that the US would rorist attack on a major US city by reviewing promote a multilateral treaty approach, its domestic laws and policies and used both the United States has in recent years sought treaty and non-treaty methods to dissemin- resolutions of the UN Security Council. ate these policy preferences at a global level. Security Council Resolution 1373 (2001), Non-treaty initiatives included the Container based on a US draft, required all states to take Security Initiative, aimed at identifying po- certain actions against the financing of terror- tentially dangerous containers well before ist activities and established a committee of 213 9780415418768_4_014.qxd 26/11/2008 02:38PM Page 214

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the Council to monitor implementation of in a way that is not true vice versa (Scott the resolution. Unlike previous Council 2004c). The US has been strongly resistant decisions commanding states to take specific to anyone else attempting to use international actions, there was no explicit or implicit time law as a way of changing US law or policies. limit to the actions required of states; hence The US did not support the Landmines the resolution could be said to establish new Convention that, if ratified, would have binding rules of international law (Szasz impacted on US policy on the Korean 2002: 902). Resolution 1540 (2004), requir- Peninsula; neither has the US accepted the ing states to take certain specified actions to need for a new arms control treaty for outer prevent non-state actors acquiring weapons space as has been promoted by China. of mass destruction, prompted some lawyers According to the 2006 US national space pol- to argue that such legislative resolutions are icy, the US will “oppose the development of beyond the powers of the Council (Elberling new legal regimes or other restrictions that 2007). seek to prohibit or limit US access to or use There are obvious practical advantages to of space” (US National Space Policy 2006: the US of using Security Council resolutions 2). Within the US there have in recent years in this way, including the relative speed of the been strong voices warning US policy negotiating process and the fact that by art- makers to guard against the “threat” of inter- icle 25 of the UN Charter, members have national law (Spiro 2000b); Rivkin and Casey agreed to accept and carry out the decisions have, for example, claimed that “international of the Security Council. The introduction of law may prove to be one of the most potent “legislative” resolutions has sparked concern weapons ever deployed against the United at the potential scope for this autocratic States” (Rivkin and Casey 2000/2001: 36). mode of imposing new law on the interna- US resistance to the imposition on US tional community in contrast to the relatively society of external law can be said to have a more democratic method of multilateral long history: treaty negotiations. To be perceived as legitimate, such law making requires trust on the For the American Revolution was a rebel- part of the less powerful states that the per- lion against the imposition of transnational manent members of the Security Council will law, the precise issue being whether the not abuse their powers but trust in US for- British Parliament possessed the rightful eign policy, methods, and motives has in recent authority to make laws for the internal affairs of the colonies. The colonists insisted that, years been in short supply. as they had never been represented in the British Parliament, they could not accept such authority. The British disagreed, and The US seeks to protect its own so brought on a revolutionary conflict. policy choices and legal system (Rabkin 1999: 31) from external influence via international law There has long been a view that leaving US law unsullied could strengthen US cohesion A second feature of the US engagement with and identity and guard against foreign international law is that the US guards meddling in US affairs. While liberal inter- keenly against other actors using the interna- nationalists might point out that engagement tional legal system as a means of influenc- in the international legal system inevitably ing US law and policy, both foreign and involves some loss of national sovereignty domestic. The net effect of a lot of US-led or policy control, it is worth bearing in mind multilateral treaty law has been that the US that the fact that the US took the lead in draft- has influenced the laws and policies of others ing so many of the significant post-Second 214 9780415418768_4_014.qxd 26/11/2008 02:38PM Page 215

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World War treaties together with its careful of America”. The United States has not only monitoring of the international law commit- “unsigned” the Rome Statute of the ICC ments it assumed subsequently, has meant that but has through its negotiation of bilateral US participation in the system of international “impunity agreements” actively sought to law has not involved nearly such a loss of inde- ensure that no US citizen ever appears pendent decision-making capacity as it has for before the Court. A notable exception to the the average participant. pattern of the US shielding itself from being This longstanding US care to protect its law brought against its will before an international and policy choices from external encroach- court is the US preparedness to be subject to ment can help us understand recent reluctance the compulsory and highly legalized dispute on the part of the US to participate in some settlement system of the World Trade Or- significant new developments in interna- ganization, in whose establishment the US tional law. In the case of US hostility to the was a leader. ICC, for example, it is true that there were Article VI of the US Constitution of 1789 specific aspects of the Statute that the US did declares that not only the Constitution and not like, foremost among which was that it the Laws of the United States, but all treaties, left open the possibility of a US national being “shall be the Supreme Law of the Land”; “the brought before the Court despite the fact that judges in every state shall be bound thereby, the US had never ratified the Statute (Elsea anything in the Constitution or laws of any 2006). The underlying grounds for US hos- state to the contrary notwithstanding”. The tility towards the Court can, however, be fact that the Constitution declares treaties to understood to be that international judicial be the supreme law of the land might appear bodies and interested states would be able to suggest a much greater domestic acceptance to use the Court to shape American policy. of international law than, say, the UK system “An American president would be far less likely in which treaties have no domestic force unless to use force if there were a genuine pos- explicitly incorporated into the national legal sibility that US soldiers or officials, including system via an act of parliament (Denza 2006: himself, would face future prosecution in 434). Indeed, the Supremacy Clause is gen- a foreign court” (Rivkin and Casey 2000/ erally understood as having been intended to 2001: 40). reverse the British rule, which the US would The US has with few exceptions always have otherwise inherited (Vazquez 2008). In guarded against the possibility of the US and practice, the apparent openness of the US legal its citizens being brought against their will system to international treaties has led to before an international court or tribunal. considerable focus being placed on ways of Despite the fact that the Permanent Court of resisting what might potentially have been an International Justice, established in 1922, overwhelming impact of international law on “owed something to the example of the US the domestic legal system. Supreme Court and much to the inspiration One means by which this has taken place and leadership of American legalists” (Bailey has been through the judicially developed doc- 1974: 629), the US never ratified its Statute. trine of non-self-executing treaties. As early The US did ratify the Statute of the Inter- as 1829, Justice Marshall attached a proviso national Court of Justice, but did so with to his statement affirming that in declaring the Connolly reservation by which the treaties to be the law of the land, the US con- US declared exempt from the Court’s com- stitution was providing that in courts of jus- pulsory jurisdiction “disputes with regard to tice, a treaty is to be regarded as equivalent matters which are essentially within the to an act of the legislature. A treaty was to be domestic jurisdiction of the United States of regarded as equivalent to an act of the leg- America as determined by the United States islative “whenever [the treaty] operates of itself 215 9780415418768_4_014.qxd 26/11/2008 02:38PM Page 216

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without the aid of any legislative provision. but not ratified the International Covenant on But when the terms of the stipulation import Economic, Social and Cultural Rights, the a contract, when either of the parties engages Convention on the Elimination of all Forms to perform a particular act . . . the legislature of Discrimination against Women, and the must execute the contract before it can Convention on the Rights of the Child. become a rule for the Court” (Foster vs. Neilson It has neither signed nor ratified the two (27 US 253 (1829)). A self-executing treaty Optional Protocols to the International is thus one to which the executive and Covenant on Civil and Political Rights and courts are to give effect without awaiting an the Convention on the Rights of the Child. act of Congress. Non-self-executing treaties The reluctance of the Senate to lend its con- are treaties by which the US government sent to ratification of human rights treaties has promised to take a specific course of is exacerbated by the fact that these treaties action such as to enact a law and these re- typically address subjects that are primarily a quire congressional implementing legislation. matter of state law in the United States An example of a non-self-executing treaty is (Murphy 2004: 101). the Genocide Convention by which the US When it does ratify human rights treaties, undertook to make genocide a crime in the the United States generally does so with a US. Although it need not necessarily have number of reservations, understandings and done so, the doctrine of non-self-executing declarations (RUDs) that have the effect of treaties has, in practice, functioned as a severely limiting any independent influence mechanism by which the impact of inter- of international law on US law or policy. national law on US law and policy has been Kenneth Roth has described how a treaty is considerably constrained (Henkin 1996: subjected to systematic analysis by Justice 291–92). Department lawyers, who: The fact that any treaty into which the US was going to enter was going to be [C]omb through it looking for any re- “supreme” within the US legal system meant quirement that in their view might be that particular care was to be taken before com- more protective of US citizens’ rights than mitting to any treaty obligations. Treaties pre-existing US law. In each case, a reservation, declaration, or understanding is were to be entered into by the president only 1 drafted to negate the additional rights if two-thirds of the Senate were to concur. protection. These qualifications are then Because a political party rarely commanded submitted to the Senate as part of the a two-thirds majority, this constitutional ratification package. provision required that a treaty have re- (Roth 2000: 348) ceived broad political support before the US became party to it. Failure to achieve a Hence, for example, although the United two-thirds Senate consent to ratification of States ratified the International Covenant on a treaty has constituted another means by Civil and Political Rights (ICCPR), its which the impact of international law on US accession was accompanied by five reserva- law and policy has been minimized. It is not tions, four interpretative declarations and that the Senate has rejected a large number five understandings. The US has entered the of treaties; in many cases a treaty has stalled highest number of reservations by states before even being voted on in the Senate when parties to the Torture Convention, the the extent of opposition to the treaty has Convention on the Elimination of Racial become apparent.2 Discrimination and the ICCPR (Redgwell One whole category of treaties that the US 2003: 394). In the case of the ICCPR, three has ratified at a very low rate is that of human out of four states have ratified the treaty with- rights treaties. The United States has signed out a single reservation, whereas the US has 216 9780415418768_4_014.qxd 26/11/2008 02:38PM Page 217

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entered 11. While article 7 of the ICCPR It is in relation to customary international states, inter alia, that no one shall be subjected law that fear of the potential impact on to torture or to cruel, inhuman or degrad- US law of international law has been ing treatment or punishment, the US has most strongly expressed. Speaking in 2006, entered a reservation that: “[T]he United States Secretary of Homeland Security, Michael considers itself bound by article 7 to the extent Chertoff, emphasized the fairness of the that ‘cruel, inhuman or degrading treatment US living up to the letter of a treaty ratified or punishment’ means the cruel and unusual by the Senate, yet cautioned against “an treatment or punishment prohibited by the increasing tendency to look to rather gener- Fifth, Eighth, and-or Fourteenth Amend- ally described and often ambiguous ‘uni- ments to the Constitution of the United versal norms’ to trump domestic prerogatives States.” The practice of seeking to limit that are very much at the core of what it acceptance of a treaty to only those provisions means to live up to your responsibility as a already provided for in US law serves to sovereign state”. He explained the value of narrow the difference, in practical terms, the Senate adopting a cautious approach between those human rights treaties the US through the use of reservations: has or has not ratified. The US has difficulties in relation to any treaty, such as the Rome And yet again, the experts and sometimes Statute of the ICC, which do not permit re- the foreign adjudicators simply view those servations; John Bolton, who served as the limitations as minor impediments to in- Assistant Secretary of State for International sistence that we accept the full measure of Organization Affairs at the Department of State the treaty as ratified by others, or perhaps from 1989 to 1993, has asserted that the US as not ratified by anybody, but as having should never agree to such a clause (Bolton its source in that vague and fertile turf of 2000: 190). customary international law. (Chertoff 2006) In the 1950s Senator Bricker mounted an unsuccessful campaign to amend the Con- stitution to ensure that all treaties would be The fact that the Supreme Court has in some non-self-executing and to deny Congress cases relied on international and foreign the power to implement certain treaties in law in its interpretation of the Constitution domestic law, apparently so as to guard has fueled considerable scholarly output con- against racial discrimination and segregation cerning the legal status of customary interna- being ended by international treaty (Henkin tional law and the validity of using foreign 1995b: 348). Contemporary would-be pro- and international law in constitutional inter- tectors of the US legal system from interpretation (e.g. Goldsmith and Posner 2005; national human rights law intrusions on US McGinnis 2006; Neuman 2006). domestic policy include Jack Goldsmith, author of such titles as “Should international human rights law trump US domestic law?” The US takes legal obligations (Goldsmith 2000a). Human rights treaties seriously come in for particular criticism because this group of treaties imposes limits on the basic It may make for a pithy press release on the powers of a state to establish what constitutes part of an NGO to claim that the US simply permissible conduct in that society and what does not care about international law – consequences should flow from a breach of indeed, there are undoubtedly many indi- those rules; human rights circumscribe a viduals in the US who do not, but if the government’s power to define its relations with breadth of US state behavior is held up to its own citizens (Schou 2000). analytical scrutiny, such an assertion does 217 9780415418768_4_014.qxd 26/11/2008 02:38PM Page 218

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not hold up. With the twin provisos that ments seriously. One is that the US shies away US national security must come above all other from committing to treaties that other states considerations and that the US seeks to may readily ratify but then not implement. guard against external influencing of US pol- John Bellinger III, US Legal Adviser, com- icy via international law, the US can be said mented in 2007 that: “[U]nlike certain to take legal obligations seriously. This is true countries, we do not join treaties lightly, as whether the obligations are US obligations or a good will gesture, or as a substitute for tak- those of others. US respect for international ing meaningful steps to comply” (Bellinger law can be said to be an extension of US 2007). It may be the state that has the least respect for its own legal system. President intention of complying with a treaty that is Abraham Lincoln declared in 1838: most ready to ratify it. China, for example, has a much worse record in terms of torture As the patriots of seventy-six did to the sup- than the United States, and the Convention port of the Declaration of Independence, against Torture a relatively low participation so to the support of the Constitution and rate, yet China was an early ratifier of the Laws, let every American pledge his life, his Torture Convention (Kent 2007: 202–204). property, and his sacred honor; – let every While the US may be the only country other man remember that to violate the law, is to than Somalia not to have ratified the UN trample on the blood of his father, and to Convention on the Rights of the Child, this tear the character of his own, and his chil- is presumably not indicative of the typical dren’s liberty . . . let [a reverence for the laws] become the political religion of the nation; childhood experience in the US and Somalia and let the old and the young, the rich and relative to that in the rest of the world. the poor, the grave and the gay, of all sexes The US is ready to hold other states fully and tongues, and colors and conditions, accountable in terms of their legal obligations sacrifice unceasingly upon its altars. and is particularly unhappy when members (Lincoln 1838) of an international committee or organization use that participation to provide cover for It has often been noted that the United actions that may not be compatible with the States is a country built on law. “We are a legal obligations they have assumed. In nation bound together not by ties of blood rejecting the proposed Verification Protocol or religion, but by paper and ink. The for the Biological Weapons Convention, the Declaration of Independence itself was, at US argued that the Protocol was inadequate its heart, an appeal to law” (Rivkin and to the task and would enable states to gain Casey 2000/2001: 35). “American law is not credibility from ratifying the Protocol even merely one social system among many. It is if in breach of their obligations under the the central instrument of the self-constituting Convention (Murphy 2001: 899–901). This of American society” (Allott 2003: 131). is not to say that the United States is never Respect for the rule of law has traditionally itself in breach of international law; indeed been perceived as a core ingredient of US critics accuse the US of grave breaches, strength. President Lincoln declared in 1838 including on such high-profile issues as use that: “[W]hile ever a state of feeling, such of force, torture, provisional measures of as this [a reverence for the laws] shall uni- the International Court of Justice, and the versally, or even, very generally prevail Treaty on the Non-Proliferation of Nuclear throughout the nation, vain will be every Weapons. effort, and fruitless every attempt, to subvert How can such apparent lapses in the legal our national freedom” (Lincoln 1838). credentials of the US be reconciled with an There are several, perhaps unexpected, assertion that the US takes legal obligations implications of the US taking legal commit- seriously or is this identified characteristic no 218 9780415418768_4_014.qxd 26/11/2008 02:38PM Page 219

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more than an apology for US behavior? One action that is not compatible with existing US perhaps rather simplistic answer would be that obligations in international law, it would be the US takes its legal obligations seriously fair to say that this is not the preferred posi- but, from a lawyer’s perspective, perhaps not tion. Where practical, US officials would prob- seriously enough. Or, to express it differently, ably prefer to withdraw from the relevant legal the US is prepared to put its policy choices, obligation. On December 13, 2001 the US particularly those involving the “national submitted formal notification to Russia of interest”, ahead of an obligation in interna- its intention to withdraw from the Anti- tional law. A lawyer might believe that a state Ballistic Missile Treaty of 1972. The treaty had should comply with international law no been premised on the cold war doctrine of matter what, but from a political or even eth- mutually assured destruction and US defense ical perspective, many questions other than policy had moved on. While Russia’s Pre- that of legality need to be taken into account sident Putin recognized that the US was within in evaluating policy choices. its rights to withdraw from the Treaty, there While it is extremely rare for a state to was widespread concern that the withdrawal openly admit that it intends to breach inter- could spark a fresh arms race, particularly with national law, it would be fair to state that the China (“US quits ABM Treaty” 2001). US has gone to extraordinary lengths to try Following the Avena Case in which the to reconcile its policy choices with contem- International Court of Justice found that the porary international legal standards. This US had violated article 36, paragraph 1(b) of has on occasion produced contrived legal the Vienna Convention on Consular Rela- justifications that lose sight of the spirit if not tions in its treatment of Mexican nationals the letter of the relevant law. The use of force on death row in the United States, the US against Iraq offers one example, but the Secretary of State on 5 March 2005 strain in other legal justifications proffered announced the US withdrawal from the by the US in recent years has been as great if Optional Protocol to the Vienna Conven- not greater. Particularly given that the pro- tion on Consular Relations Concerning the hibition against torture exists in customary Compulsory Settlement of Disputes (Death international law as well as in treaty law, the Penalty Information 2005). Mexico had US explanation to the Committee against invoked the Optional Protocol as the basis of Torture as to how the infamous “torture the Court’s jurisdiction in this case, as had memos” were compatible with an abiding US Paraguay and Germany in two previous cases commitment to the prohibition on torture brought against the United States on the ques- would appear to most readers as an exercise tion of consular access for foreign nationals in semantics (List of issues). The US has arrested in the United States and sentenced entered into the same definitional acrobatics to death.3 Although withdrawal from a legal in terms of who can be regarded as a prisoner obligation with which the US is not complying of war under the Convention Relative to the may be an expedient means of ending US non- Treatment of Prisoners of War (see Aldrich compliance, the US cannot simply withdraw 2002). Such acrobatics may or may not have from all legal obligations that become in- been performed cynically – the point here is convenient because the system is premised not that US officials necessarily believed in largely on the principle of reciprocity and the legal arguments they were putting forward the US still wants and needs the international – but that they at least recognized the im- legal system both to promote stability and portance of having a legal rationale and to provide a means for the dissemination of hence the seriousness of legal obligations. US policy preferences. Although the US engages on occasion in Most US observers would believe that contorted legal justification for a policy or this third feature of the US engagement with 219 9780415418768_4_014.qxd 26/11/2008 02:38PM Page 220

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international law is one that has changed policy preferences on the US. The US may significantly in recent years. Whether the US support the development of international does in fact take its legal obligations less seri- human rights law as a means of disseminat- ously now than it did 30 or 40 years ago would ing its policy preferences but the fact that it be difficult to measure. It is not new for the has such faith in its own legal system and US to engage in acts of non-compliance, even respect for the legal obligations its citizens incur with the international law on the use of force thereunder gives rise to a belief that the US and it is true that higher standards are has no need for external standards of human expected of the US than of other countries. rights. This underscores the importance of percep- The three identified features of the US tion. The US under the Bush administra- engagement also provide a basis on which to tion appears on occasion to have deliberately tease out aspects of change and continuity in fostered a perception of a reduced US com- US practice in relation to international law. mitment to its international law obligations The US failure to ratify the Rome Statute through its rhetoric. This may be one of the of the ICC might, for example, appear to ultimate anomalies in the contemporary reflect a recent downturn in US concern for US engagement with international law, for international law, but it can at the same time it would most readily be assumed that a state be viewed as reflecting continuity with the would want to “talk up” rather than “talk US reluctance to submit itself or its citizens down” its commitment to international law. to the compulsory jurisdiction of an inter- Joseph Nye has led an effort to warn national court. That reluctance remains. Washington of the consequences of disre- While the fact that the US did not veto a 2005 garding the importance of “soft power”. Security Council resolution referring the Global opinion polling now suggests that situation in Darfur to the ICC is interpreted majorities around the world assume that by some observers as another shift on the part China will one day be as powerful as the US of the US, this time toward greater accept- and that the US is not concerned by that fact ance by the US of the Court, the US has (WorldPublicOpinion.org 2007). never opposed criminal accountability before an international court or tribunal – at least so far as others are concerned. Conclusions Although it would be difficult to sustain an argument that acts of US non-compliance Our starting point in this chapter was the are a new feature of the US relationship with many anomalies and apparent inconsistencies international law, the claim that the US takes that pervade the US engagement – and dis- legal obligations seriously has in recent years engagement – with international law. In an been challenged by a number of high-profile attempt to reconcile some of those anomal- cases of non-compliance, including, most ies, this chapter has identified three features prominently, the 2003 invasion of Iraq. The of the US relationship with international use of international law to disseminate pre- law. In combination, these features help ferred policy options has been overshadowed make sense of many actions and inactions of by the use by the Bush administration of non- the US. The US may like to use international legal means of policy dissemination. This sug- law to disseminate its policy preferences, but gests that of the three identified features of what then appears as support for the system the US engagement it is the US determina- of international law is weakened by the fact tion to protect its own legal system from exter- that the US also wants to prevent others nal influences via international law that has from using international law to impose their remained most constant. This feature gives rise

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to many of the inconsistencies in the US atti- Notes tude towards international law, for it tempers both the use of international law to dissem- 1 US Constitution, article II, section 2. This dif- inate policy preferences and the seriousness fers from normal legislation, which requires with which the US accepts its international approval by simple majorities in both the Senate and the House of Representatives. law obligations. 2 Not all treaties are put through this process. It is interesting to note in conclusion that Because of the difficulty of acquiring 2/3 attaching great importance to respect for Senate approval, a practice arose early on of refer- sovereignty is also a hallmark of the Chinese ring to some of what would in international law attitude towards international law (Xue be treaties, by other names such as presidential agreements and Congressional–Executive 2007: 84). As a rising power, China has agreements and gaining approval for their worked hard to make effective use of soft ratification via different processes. power (Kurlantzick 2007). The argument 3 The first of these cases did not reach the mer- that the US should show greater deference its stage, after the US executed Angel Francisco towards international law now so that China Breard in defiance of the provisional order issued by the ICJ. In its decisions in both the will do the same if and when its power equates LaGrand and Avena Cases, the ICJ found that with that of the US may not be entirely con- the US had violated the Consular Convention. vincing (Posner and Yoo 2006). It is never- Case Concerning the Vienna Convention on theless difficult to see how the US stands to Consular Relations (Paraguay v. United States), benefit from fostering a perception that it no 1998 ICJ Rep. 248; LaGrand Case (Germany vs. United States), 2001 ICJ Rep. 466. longer cares about international law.

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15 The Iraq war and international law

Wayne Sandholtz

The 2003 war in Iraq, perhaps more than any other international law – sovereignty, the use of event since the Second World War, touched on the force, the rules of war, occupation – as well historic core issues of public international law, as as twentieth-century developments in inter- well as twentieth-century developments in interna- national human rights. Traditional norms of tional human rights. Existing rules on the use of international law seemed to be under strain; force and the treatment of detainees appeared to be indeed, some American officials asserted that under strain; some governments argued for their the challenge of global terrorism necessitated revision or replacement. This chapter examines the the revision or replacement of existing rules implications of the Iraq war and its aftermath for on the use of force and of parts of the three areas of international law: the use of force, Geneva Conventions. International lawyers the treatment of detainees, and occupation. The legal joined the debate with passion and insight. debates surrounding the invasion and occupation of How have the events of the Iraq war and Iraq have largely reaffirmed existing fundamental the legal arguments surrounding them norms but also highlighted areas of the law in need affected the development of international of further development. law? For example, was the invasion of Iraq the first step in the emergence of new norms Rarely, if ever, has the spotlight of public on the use of force, or did it largely reaffirm attention shone on international law as existing rules? Comprehensive answers may intensely as it has since the March 2003 be decades away, when legal analysts will be invasion of Iraq. Leading stories in the news- able to assess patterns of state practice and legal papers and on television have regularly dis- interpretation since the Iraq war. But it is pos- cussed, for example, The Hague and Geneva sible now to distill preliminary conclusions, Conventions, and debated the interpreta- and this chapter aims to suggest some. It exam- tion of Security Council resolutions. Inter- ines the implications of the Iraq war and its national law has been at the heart of some aftermath for three areas of international law: of the vital controversies of the day – war, the use of force, the treatment of detainees, occupation, the treatment of prisoners. and occupation. The legal literature on each The war in Iraq, perhaps more than any of these topics is already voluminous. This other event since the Second World War, chapter cannot, therefore, cite every relevant touched on the historic core issues of public work, but it does strive to represent the key 222 9780415418768_4_015.qxd 26/11/2008 02:38PM Page 223

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controversies and the principal arguments. To in international affairs. But the reliance of both preview, it concludes that the legal debates advocates and opponents of the Iraq war on surrounding the invasion and occupation of the Security Council process, with Security Iraq have, on balance, reaffirmed existing fun- Council resolutions at the heart of the damental norms but also highlighted areas of debates, may in fact reinforce the Council’s the law in need of further development. role. Although the United States claimed Security Council authorization for its actions in Iraq, it did not assert a general, unilateral The use of force right to decide on the use of force. The legal dispute, therefore, centers on the inter- On March 19, 2003 a U.S.-led coalition began pretation of Council resolutions, not on the bombarding selected targets in Iraq and viability (or non-viability) of the Security coalition troops crossed the border the fol- Council as the central international mechan- lowing day. According to U.S. officials, the ism for overseeing peace and stability. The coalition included 30 states, with another U.S.-led coalition may well be judged, ulti- 15 countries privately expressing support mately, to have waged an illicit war. But, for the action (Guynn and Infield 2003). The for the system of international rules, it is far United States supplied the greatest share of better that such a judgment be made in a the troops (over 250,000), followed by the context of interpreting and applying Council United Kingdom (45,000) and Australia resolutions than in a setting in which the (2000); these three countries were the only survival of Article 2(4) and of the Security ones whose forces participated in the land Council role in regulating the use of force are invasion. The slenderness of the coalition in question (Murphy 2004: 176–7). was directly connected to the breadth of inter- The key international law controversy national opposition to the war. Important surrounding the use of force against Iraq, then, traditional allies of the United States, includ- centers on the contention that a series of ing Canada, France, and Germany, not only Security Council resolutions provided a legal refused to participate in the coalition but crit- basis for the invasion. This is the only law- icized the war as unjustified. Middle Eastern based claim that the United States and the countries that had actively contributed to the United Kingdom articulated in a formal (that coalition that drove Iraq out of Kuwait in 1991 is, United Nations) setting. U.S. officials did, (like Kuwait and Qatar) declined to join in however, suggest a second justification for 2003. Turkey, a NATO partner, refused to military action against Iraq, namely, that the allow coalition troops to attack Iraq through United States could in any case exercise its its territory. Russia, China, and other states right to preventive self-defense.1 The language from every region of the world condemned of self-defense may have had largely political the invasion. The opposition to the Iraq purposes, but it did contain a legal claim, which war may have been tied to political, strat- international law commentators seized on and egic, or economic interests, or to pragmatic explored. concerns, but it also had a vigorous legal component: for much of the world, without Security Council resolutions and the authorization from the United Nations use of force against Iraq Security Council, the use of force against Iraq was illegal and illegitimate. In their formal communications to the That the United States and its allies Security Council, the governments of both attacked Iraq without a mandate from the the United Kingdom and the United States Security Council might seem to weaken the argued that Iraq’s ongoing refusal to comply Charter system for regulating the use of force with Security Council resolutions justified the 223 9780415418768_4_015.qxd 26/11/2008 02:38PM Page 224

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use of force. U.S. Secretary of State Colin ficient to reactivate the “all necessary means” Powell’s extended presentation to the Secur- clause of Resolution 678, even without a new ity Council on February 5, 2003 repeatedly Security Council resolution. The memo also invoked Resolution 1441 as Iraq’s “one warns that regime change by itself could never last chance” to rid itself of weapons of mass provide legal justification for using force destruction (WMD); presented evidence against Iraq (Goldsmith 2003b).2 that Iraq remained in “material breach” of its Ten days later, Lord Goldsmith submitted obligations under Resolution 1441 (2002); and to parliament a more succinct and far less intimated that it was time for the Security qualified legal justification for attacking Iraq. Council to use force to compel Iraqi com- Presumably, by then the British government pliance (United Nations 2003d). The follow- needed not an exploration of legal subtleties ing month, after it became clear that the but as solid a justification as possible for a de- Security Council would not pass a new resolu- cision to go to war. The March 17 statement tion explicitly authorizing the use of force, declares that Iraq’s continued non-compliance the leading coalition members claimed that with its disarmament obligations revived the Iraq’s failure to comply with Resolution 1441 Resolution 678 authorization to use force, left it in ongoing material breach of disarma- without the need for a new resolution ment obligations contained in Resolution (Goldsmith 2003a). A letter of March 20, 2003 687 (1991). Because Resolution 687 was the from the United Kingdom’s Permanent basis for the ceasefire that ended the Persian Representative to the President of the Secu- Gulf war, Iraq’s violation of its provisions rity Council offered the same legal justifica- terminated the ceasefire and revived the tion as the Goldsmith memoranda (United original authorization of force contained in Nations 2003c). A letter from the Permanent Resolution 678 (1991). Resolution 678 Representative of the United States on the “authorizes Member States co-operating same date made the same case (United with the Government of Kuwait . . . to use Nations Security Council 2003b). The all necessary means to uphold and implement Australian government had also received resolution 660 (1990) and all subsequent from the Attorney General’s office and the resolutions and to restore international peace Department of Foreign Affairs and Trade a and security in the area.” legal opinion justifying the use of force in iden- The British government delineated the tical terms. Iraq’s refusal to rid itself of all legal argument prior to the invasion. A secret weapons of mass destruction was a material memorandum of March 7, 2003 (later leaked breach of Resolution 687; “[c]onsequently, and subsequently released officially) from the cease-fire is not effective and the auth- Lord Peter Goldsmith, British Attorney orisation for the use of force in SCR 678 is General, to Prime Minister Tony Blair, reactivated” (Australia 2003). offers what is probably still the most nuanced The question is whether the coalition’s analysis of the Resolution 1441 argument in invocation of prior resolutions was a legally favor of using force against Iraq. Goldsmith sound basis for using force against Iraq. concludes that, at a minimum, the Security Despite some supportive analyses by academic Council would have to discuss evidence lawyers (see Yoo 2003) the overwhelming that Iraq had failed to comply fully with conclusion of the commentators is that the Resolution 1441. He leans toward the inter- coalition arguments are strained and unten- pretation that, ideally, a second resolution able. The principal problems with the coali- (even a vague one) would then trigger the use tion legal argument are the following. of force, but notes that the United States had First, when Resolution 678 mentions made a forceful argument that the mere fact Resolution 660 “and all subsequent resolu- of continued Iraqi non-compliance was suf- tions” (paragraph 2), the most plausible read- 224 9780415418768_4_015.qxd 26/11/2008 02:38PM Page 225

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ing is that it refers to the 10 resolutions that Resolution 678 (specifically, its provisions identified in the preamble, all of them prior on the use of force) remained in effect, as to Resolution 678. Resolution 678 authorizes Resolution 686 had done, Resolution 687 the use of force if Iraq failed to comply details a new set of mechanisms (not includ- with those resolutions by 16 January 1991. ing military force) for compelling Iraq to meet That authorization could not apply to later its obligation to disarm. resolutions, like 687, for the simple reason Third, even if military means of enforcing that Iraq could not possibly comply by 16 Resolution 687’s disarmament provisions January 1991 with resolutions that would not appeared to be required, any use of force yet exist as of that deadline (Murphy 2004: would have to be proportionate to the Iraqi 181). Furthermore, it seems implausible in the offense. Force could be used to destroy Iraqi extreme that the Security Council would grant WMD production facilities or storage sites, permission to use force against Iraq to all mem- for example, or to compel access for inspec- bers of the 1991 Persian Gulf war coalition, tors. If regime change appeared to be the only into the unbounded future. Similarly, the way to achieve Iraqi compliance, then the Resolution 678 mandate “to restore interna- decision to replace the government by force tional peace and security in the area” cannot would have to be made by the Security create an open-ended authority to use force Council (Murphy 1992; Murphy 2004: against Iraq for any purpose. “Restore” log- 197). Fourth, resolution 687 is not an ically refers to a return to the situation before armistice or ceasefire treaty (as argued by Yoo Iraq’s invasion of Kuwait; it does not confer (2003)) whose violation would permit the a license to install a new regime in Iraq. offended states to resume hostilities. In fact, Moreover, Resolution 687 established a Resolution 687 is not a treaty at all.3 The coali- new mandate for the “restoration of peace and tion argument that Iraqi non-compliance security in the region,” superseding that of with Security Council resolutions entitled Resolution 678 (Murphy 2004: 183–4). coalition members to suspend the 1991 Second, as Murphy notes, the U.S. (and ceasefire is thus inapposite. Yoo’s argument British) argument regarding Resolution 687 that the coalition was justified by its right to ignores the context created by Resolution suspend or abrogate treaties is likewise un- 686. In Resolution 686 (1991), the Security sustainable (Yoo 2003, contending that Iraq’s Council lists the steps that Iraq must take in breach of Resolution 687 was equivalent to order to “permit a definitive end to the hos- material breach of a treaty obligation, per- tilities” (United Nations Security Council mitting the coalition states to set aside their 1991a). On March 3, 1991 Iraq indicated its obligations under it). But no treaty between acceptance of the obligations detailed in Re- Iraq and the coalition members existed. solution 686, and one month later the Secu- Resolution 687 is not a treaty; it is a decision rity Council adopted Resolution 687, which of the United Nations Security Council, was the “definitive end to the hostilities” fore- binding on all member states. When a seen by Resolution 686 (Murphy 2004: 192). Security Council resolution is the obligation Resolution 687 then establishes a ceasefire and in question, only the Council can decide on a new, post-conflict set of conditions on Iraq. appropriate responses to a state’s non- It further declares that it would be up to the compliance with its terms. Security Council – not individual states – to Fifth, Resolution 1441 did not in itself “take such further steps as may be required authorize the use of force. The United for the implementation of the present reso- Kingdom and the United States argued in the lution and to secure peace and security in the weeks leading up to the invasion that region” (United Nations Security Council Resolution 1441 (November 2002) constituted 1991b: 34). Finally, rather than announcing Iraq’s last chance. Resolution 1441 required 225 9780415418768_4_015.qxd 26/11/2008 02:38PM Page 226

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of Iraq a full and accurate declaration regard- resolution failed. Again, the solid majority of ing all of its WMD programs. The United Security Council members were not willing States argued that if either the Interna- to pass a second resolution that, they had tional Atomic Energy Agency (IAEA) or agreed, alone could permit the use of force UNMOVIC (the United Nations inspection against Iraq. Thus arguments to the effect that team), or a member state, reported to the Resolution 1441 implicitly authorized the use Security Council that the Iraqi declaration of force, or that the members of the Security was incomplete, the Security Council needed Council understood it to do so, do not stand only to meet to consider that submission. up to the factual record. If the Council Crucially, the coalition leaders asserted that members that voted in favor of Resolution once the Council had met, member states 1441 had intended it to authorize force, they could use military means to enforce U.N. could simply have reaffirmed that decision in resolutions in Iraq – no further, explicit a second resolution, as the United Kingdom decision (or “second resolution”) was and the United States urged them to do. required. Despite the Security Council’s refusal to Despite the ambiguities in Resolution authorize the use of force against Iraq, the 1441, ambiguities traceable to the difficult United States appeared committed to war. political compromises required to obtain In the same meeting in which the Security consensus on its adoption, one thing is cer- Council passed Resolution 1441, Ambassador tain: the resolution does not explicitly Negroponte of the United States warned that authorize the use of force. It threatens if the Security Council “fail[ed] to act deci- unspecified “serious consequences” (United sively . . . this resolution does not constrain any Nations Security Council 2002b). In the Member State from acting to defend itself debates over earlier drafts of the resolution, against the threat posed by Iraq or to enforce the United States pressed for language that relevant United Nations resolutions” (United would have directly authorized the use of Nations Security Council 2002a: 3). As the force. A solid majority of the Council now-famous “Downing Street Memo” resisted. In the discussion immediately fol- reveals, the Bush administration had decided lowing passage of Resolution 1441, nine on war, well before the Security Council countries expressed their understanding that, debates.5 Even so, on balance, it is better for in the words of the French representative, international law that the United States the resolution reflected their “request that a worked through the Security Council and two-stage approach be established and com- offered legal justifications based on Security plied with,” and that “all elements of auto- Council resolutions. Ignoring the Security maticity have disappeared” (United Nations Council process, or dismissing it as irrelevant, Security Council 2002a: 5).4 In the same meet- would have been more damaging to interna- ing the British delegate acknowledged that tional order. “there is no ‘automaticity’ in this resolution,” In summary, the balance of legal arguments and the U.S. representative agreed that the weighs against the U.S. and British interpre- resolution contained “no ‘hidden triggers’ and tation of Resolutions 678, 687, and 1441. The no ‘automaticity’ with respect to the use of Security Council did not, either in 1991 or force” (United Nations Security Council in 2002, authorize the 2003 invasion of Iraq. 2002a: 3, 5). In other words, the Security The war in Iraq was therefore a significant Council adopted Resolution 1441 on the basis violation of one of the fundamental norms of of a solid consensus that a second resolution international law, the Article 2(4) prohibition would be required to authorize military on the use of force. action. In January and February 2003 U.S. The debates surrounding the invasion of Iraq and British efforts to gain passage of a second did generate questions regarding Security 226 9780415418768_4_015.qxd 26/11/2008 02:38PM Page 227

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Council practices and the interpretation of Preventive self-defense Security Council resolutions.6 For example, what significance should we attach to language Although it is true, as commentators have the Security Council omits from its resolu- noted, that the United Kingdom and the tions? What is the meaning of silence? Taft United States did not offer a self-defense and Buchwald argue that because Resolu- justification in the Security Council tion 1441 omitted proposed clauses that (Brunnée and Toope 2004: 794; Kritsiotis would have required a second decision, a 2004: 248; Murphy 2004: 174–7), various U.S. second resolution was not necessary and officials did raise such an argument in other the use of force was therefore justified by settings. The U.S. government’s September Resolution 678 (Taft and Buchwald 2003: 2002 National Security Strategy had 561–62). In other words, in this view, the declared that “[t]o forestall or prevent such omission of language authorizing the use of hostile acts by our adversaries, the United States force should not be seen as a decision to will, if necessary, act preemptively,” before withhold such authority. But the omitted such threats are fully realized or immin- language argument must work both ways. ent (United States of America 2002: 15). If the absence of an explicit authorization President Bush seemed to be preparing the to use force should not be seen as a decision way for such preventive action when, in his to withhold such authority, then the absence January 2003 State of the Union address, he of an explicit requirement for a second declared, “America will not accept a serious resolution should not be seen as a decision to and mounting threat to our country”; if dispense with the need for a second Council “Saddam Hussein does not fully disarm,” he decision. continued, “we will lead a coalition to dis- In any case, both omissions would be con- arm him” (Bush 2003). sistent with a Council that assumed that In a speech immediately following the explicit authorization was necessary to use invasion, William Howard Taft IV, Legal force and that, as a consequence, a second Adviser to the Department of State, invoked resolution was required. the Security Council resolutions argument More generally, requiring that the auth- but also remarked that “the President may orization to use force always be explicit best also, of course, always use force under inter- serves international law and international national law in self-defense” (United States order (Murphy 2004: 172). Otherwise, argu- Department of State 2003). Similarly, in a ments will inevitably arise about whether a memorandum to the Council on Foreign particular resolution was or was not meant Relations, John B. Bellinger III, of the to authorize the use of force. In the absence National Security Council, invoked a U.S. of specific language, actors would be forced “right to use force in its inherent right of self- to infer the intentions of members of the defense . . . in anticipation of an armed Security Council. Arguments would revolve attack” (Bellinger 2003). around what Council members “really” Traditional international norms permitted meant or were thinking. Not only would such states to use force against an attack that was a setting be more open to political maneu- about to occur; this “imminence” criterion vering, it would also be more susceptible to was generally seen as fundamental, at least unilateral use of force, with states claiming since the exchange of letters between the that they alone were carrying out the “true” United States and Great Britain regarding intentions of the Security Council. A bright the British use of force in the Caroline incid- line of explicit authorization is the best bul- ent. The four overlapping Caroline criteria, wark for the Charter norms regulating the use which have generally been taken as ex- of force. pressing customary international law on 227 9780415418768_4_015.qxd 26/11/2008 02:38PM Page 228

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anticipatory self-defense, require, for the use imminence criterion with subjective judgments of force to be lawful, that: that are liable to abuse. The proposed right of self-defense against potential threats could, 1 the threat be imminent, that is, about to the extent that other states concur that such to be realized, leaving “no moment a right exists, form the basis in the future for for deliberation” (quoted in Jennings the unilateral use of force. The result would 1938: 89) be the obliteration of normative limits on 2 the use of force be necessary, in that no anticipatory self-defense (Brunnée and Toope other means could prevent the immi- 2004: 792). Indeed, permissive rules of anti- nent attack from occurring cipatory self-defense would undermine inter- 3 the force used be proportionate to national law constraining the use of force. If the threat, “limited by that necessity states are free to identify potential future threats and kept clearly within it” (quoted in and to take military action against them, Jennings 1938: 89) virtually any unilateral use of force could be 4 the use of force be a last resort, after justified as anticipatory self-defense. peaceful means have been exhausted or The prospect of unwinding modern proven impracticable.7 international legal restraints on the use of force has provoked considerable commentary Some commentators have advocated the affirming the continued validity and utility adaptation of the Caroline criteria to the mod- of the Caroline criteria. Even members of ern dangers of international terrorists and the U.S. administration sometimes expressed weapons of mass destruction, granting states support for the traditional principles. In a greater leeway in the use of force for antici- November 2002 memorandum to the patory self-defense. Wedgwood, for example, Council on Foreign Relations, State Depart- calls for new rules, arguing that states may have ment Legal Adviser William H. Taft IV, a responsibility to act against “terrorist capa- although touching on the need to adapt the bility before it is employed and, better yet, rules of preemptive self-defense to the era of before it is acquired” (Wedgwood and Roth weapons of mass destruction and global ter- 2004: 282–3). Yoo contends that the right rorist groups, affirms the core of the customary of self-defense justified the invasion of Iraq, norms: “Within the traditional framework of independently of Security Council resolu- self-defense, a preemptive use of proportional tions (Yoo 2003: 563–4). He argues, first, force is justified only out of necessity. The that “imminence” should refer not just to the concept of necessity includes both a credible, “temporal proximity of a threat” but also to imminent threat and the exhaustion of “the probability that the threat will occur,” peaceful remedies” (Taft and Buchwald and, second, that “the threatened magnitude 2003). Wippman (2004) suggests that the of harm must be relevant.” Yoo also contends traditional criteria invoked by Taft continue that overthrowing the Ba’athist regime in Iraq to be widely shared internationally, arguing was a proportional response to the threat Iraq that the “further the United States moves from posed, as Saddam Hussein himself was the self-defense” against actual or imminent source of Iraq’s “hostile intentions” (Yoo 2003: attacks, “the harder it will likely be to con- 572–4).8 vince others of the legitimacy of military inter- Most commentators, however, have seen vention” (Wippman 2004: 46). serious risks in the prospect of more permis- Even the United States’ most fervent ally, sive rules of anticipatory self-defense. The the United Kingdom, was not prepared to notion of a right to preventive self-defense – abandon the Caroline criteria. In fact, the against a threat that might emerge at some British Attorney General’s March 7, 2003 indefinite time in the future – replaces the advice to Prime Minister Tony Blair sum- 228 9780415418768_4_015.qxd 26/11/2008 02:38PM Page 229

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marizes the traditional norms and then that most do so with respect to terrorist groups, declares: “I am aware that the USA has not states. They conclude that the Caroline been arguing for recognition of some broad criteria for anticipatory self-defense continue doctrine of a right to use force to preempt to apply, although they have been “relaxed” danger in the future. If this means more than with respect to terrorism (Reisman and a right to respond proportionately to an Armstrong 2006: 538–48). Brunnée and imminent attack . . . this is not a doctrine Toope argue that an actual or imminent which, in my opinion, exists or is recognised attack from a terrorist group, with convinc- in international law” (Goldsmith 2003b: ¶ 3). ing evidence of “direct support or at least Prime Minister Blair himself, responding to tacit approval” from a harboring state should questions in a meeting of the Liaison Com- be necessary in order to justify preemptive mittee of the House of Commons, explicitly use of force in the territory of that state rejected the preventive self-defense basis for (Brunnée and Toope 2004: 415). using force against Iraq (United Kingdom Parliament 2003: ¶¶ 51–52). Although there is a right to self-defense Occupation against an attack that is not yet occurring but is imminent (the Caroline context), there is On May 1, 2003, President Bush famously, no right under international law to use force and theatrically, proclaimed the “end of against future threats. Greenwood points to major combat operations” in Iraq (New the Nuremberg Tribunal decision on Ger- York Times 2003). The U.S. and British many’s invasion of Norway and to interna- governments quickly established a Coalition tional reaction to the 1981 Israeli bombing Provisional Authority (CPA), headed by L. of an Iraqi nuclear reactor as affirming the Paul Bremer III, President Bush’s envoy to principle that anticipatory self-defense is Iraq. In mid-May, Bremer issued the CPA’s justified only when the threat is imminent first Regulation, which announced that the (Greenwood 2003: 13–14). Greenwood CPA would “exercise powers of government concludes that: “[I]n so far as talk of a doc- temporarily” and that it was “vested with all trine of ‘pre-emption’ is intended to refer to executive, legislative and judicial authority a broader right of self-defense to respond to necessary to achieve its objectives” (Coalition threats that might materialize at some time in Provisional Authority 2003). The CPA shut the future, such a doctrine has no basis in law” down on June 28, 2004 and the Iraqi Interim (Greenwood 2003: 15). Lowe criticizes the Government (IIG) assumed authority. Iraqi notion of self-defense against potential future voters ratified a new constitution in an threats as a “dangerous doctrine . . . patently October 15, 2005 referendum and elections lacking in any basis in international law” (Lowe in December 2005 filled the new Iraqi 2000b: 865). Council of Representatives. In sum, the more persuasive arguments The application of occupation law to Iraq support the conclusion that the Caroline cri- under the CPA was non-controversial. A joint teria remain viable and necessary as safeguards U.S.–U.K. letter to the Security Council (May against self-interested exploitation of the 8, 2003) affirmed that the coalition members doctrine of anticipatory self-defense. That said, would “strictly abide by their obligations under international rules regarding anticipatory international law” (United Nations Security self-defense could be adapted to deal with the Council 2003d). Furthermore, the Security threat of terrorist groups. In fact, Reisman and Council adopted Resolution 1483 (May Armstrong point out that many of the states 22, 2003), which refers to the coalition claiming a right to preemptive attacks assert members as “occupying powers” and, under it in the context of an imminent threat, and Chapter VII authority, “calls upon” them to 229 9780415418768_4_015.qxd 26/11/2008 02:38PM Page 230

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comply with, “in particular,” the 1949 tious reformist acts of the CPA, on the other. Geneva Conventions and the 1907 Hague At the heart of international law on occupa- Regulations (United Nations Security tion is the “conservationist principle” that is Council 2003a), those being the fundamen- codified in the 1907 Hague Regulations, tal instruments of international occupation especially Article 43, and the 1949 Geneva law. Both the United Kingdom and the Convention IV.10 Both the Hague and United States voted to approve Resolution Geneva Conventions are now accepted as 1483.9 customary international law, binding on all The beginning of an occupation depends states (Yoo 2003).11 Under the conservation- on empirical conditions defined by Article 42 ist principle, occupying powers exercise of the 1907 Hague Regulations: “Territory temporary, de facto control over the oc- is considered occupied when it is actually cupied territory. They may exercise that con- placed under the authority of the hostile army” trol for essentially administrative purposes (Hague Convention (IV), Convention Respecting – to “restore, and ensure, as far as possible, the Laws and Customs of War on Land). Thus, public order and [civil life]” (Convention (IV) in Iraq, occupation was a factual state of affairs, respecting the Laws and Customs of War on Land not a matter of coalition policy or labeling. and its Annex: Regulations concerning the Laws The fall of Baghdad on 9 April 2003 marked and Customs of War on Land. The Hague, 18 the end of organized resistance by Iraqi October 1907 1907).12 The occupier, because armed forces and the collapse of the Iraqi gov- it does not exercise sovereign authority, ernment. As of that date, therefore, coalition cannot engage in fundamental restructuring forces were in de facto control of the coun- of the legal and political institutions of the try as occupiers. A plausible date for the end occupied territory. Article 43 of the Hague of the occupation is June 28, 2004, when the Regulations requires the occupying power CPA passed governing authority to the Iraqi to respect, “unless absolutely prevented, Interim Government (IIG) and dissolved the laws in force in the country.” GC IV sup- itself. In fact, the Security Council, in plements and reinforces the Hague Regu- Resolution 1546, endorsed in advance the lations in this respect. Article 47 provides that “sovereign” IIG, noting that it would citizens of the occupied territory shall not be “assume full responsibility and authority . . . deprived of their rights under the Con- for governing Iraq” and declaring that the vention by any changes introduced by the occupation would end by June 30, 2004 occupation into “the institutions or govern- (United Nations Security Council 2004a: ment of the said territory” (Convention (IV) ¶¶ 1, 2). Relative to the Protection of Civilian Persons in In any case, the period between April Time of War, Geneva, 12 August 1949 1949). 2003 and June 28, 2004 was clearly that in The International Committee of the Red which the CPA exercised full legislative, Cross commentary on Art. 47 declares that executive, and judicial authority in Iraq and “international law prohibits such actions” as issued far reaching orders and regulations “changes in constitutional forms or in the form regarding the country’s political, legal, and of government, the establishment of new mil- economic institutions. itary or political organizations, the dissolution The deep and extensive reforms decreed of the State, or the formation of new polit- by the CPA have raised questions regarding ical entities” (International Committee of the the degree to which the coalition occupation Red Cross: 273). Article 64 of GC IV further conformed with international law. The fun- specifies that the occupier must maintain damental tension is between international in force the penal laws of the territory, rules that grant narrowly limited powers to subject only to suspension or modification occupiers, on the one hand, and the ambi- when necessary to ensure security or to 230 9780415418768_4_015.qxd 26/11/2008 02:38PM Page 231

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meet the occupier’s obligations under the approved program (see Yoo 2004: 10– Convention. 12).13 Indeed, Resolutions 1483 (May The reforms enacted by the Coalition 2003), 1511 (October 2003), and 1546 Provisional Authority in Iraq went far ( June 2004) do endorse the establish- beyond the minimal, custodial role set out ment of a new (and representative) pol- by Hague and Geneva law and these major itical system in Iraq (United Nations reforms can be usefully grouped under the Security Council 2003a: ¶¶ 1, 22; following headings: 2003a; 2004a).14 What is striking about the resolutions, however, is that, 1 De-Ba’athiﬁcation: abolished the Ba’ath although they support the creation of Party and banned its members from new governing institutions in Iraq, government positions and public sec- they do not confer on the CPA the tor employment. authority to effect those institutional 2 Security and military organizations: dis- reforms. Rather, the Security Council solved the Iraqi army and created new places the competence to devise new army and law enforcement organizations. institutions in the Iraqi people them- 3 Human rights: created a new Ministry selves, with an assisting role for the of Human Rights, to ensure that Iraq United Nations (see United Nations complied with its obligations under Security Council 2003a: ¶ 7; and human rights treaties. 2004: Preamble). Resolution 1546 4 Criminal law and law enforcement: also declares that the IIG will refrain reformed criminal law, police proced- “from taking any actions affecting ures, and the court system, though all Iraq’s destiny” (¶ 1) before the election remained under CPA authority. of a transitional government. If the 5 Economy: the most ambitious part of the IIG was not authorized to undertake reform program aimed at creating a long-term reforms, surely the CPA, market economy, and notably removed as a foreign actor, would be under a restrictions on foreign investment. similar limitation. 6 Good government: to promote trans- In short, Resolutions 1483 and 1546 parency and reduce corruption (Fox mention the United Nations as having 2005: 208–225). a vital role in assisting the people of Iraq to build democratic institutions, Although there is little question that the while reminding the coalition author- CPA reforms exceeded the circumscribed ities of their duty to respect Hague and authority conferred by occupation law, Geneva law, which limit the preroga- commentators have explored other potential tives of occupying powers. legal bases for the restructuring of Iraqi in- Many of the structural reforms in Iraq were stitutions. The most prominent alternative consistent with international human rights legal justiﬁcations for far reaching reform of law, which might create obligations superior occupied Iraq emphasize Security Council re- to those of occupation law. In several cases solutions or international human rights law: since 1945, national and international bodies have held that occupiers did have Security Council resolutions endorsed an obligation to apply human rights extensive reforms. It can be argued, for law in occupied territories. Indeed, it example, that Resolutions 1483 and would be absurd to require the coali- 1511 “remove any doubt” that alter- tion to preserve the governing ining Iraq’s constitution and political stitutions under which hundreds of structures was part of the U.N.- thousands of Iraqis were detained 231 9780415418768_4_015.qxd 26/11/2008 02:38PM Page 232

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arbitrarily, tortured, executed without Still, human rights norms cannot provide trial, or subjected to military attack, a legal basis for all of the reforms enacted under including with chemical weapons, by the CPA. The CPA’s refashioning of Iraq’s their own government. Thus the military and security organizations, its am- Hague and Geneva Conventions bitious economic reforms, and its good- should be interpreted in light of government reforms may not be justified modern human rights law (Fox by the demands of human rights law. The 2005: 270–274). In this perspective, the thorough transformation of Iraq’s economy CPA’s human rights reforms in Iraq are in particular has provoked legal controversy. compatible with international human Iraq’s prior constitutions had established rights norms, for example, those estab- national control over natural resources and lished by the Universal Declaration the means of production, prohibited foreign of Human Rights (UDHR) and the (non-Arab) ownership of enterprises, and International Covenant for Civil and instituted state planning of the economy Political Rights (ICCPR). (McCarthy 2005: 52). The aim of the CPA reforms was to create a market economy, The establishment of representative demo- through new laws for banking and securities, cracy in Iraq, an objective of the CPA trade, foreign investment, privatization, incor- endorsed by Security Council resolutions, is poration and bankruptcy, the currency, and also consistent with what is increasingly seen taxation. The market model is clearly the dom- as a right to democracy under international inant one in today’s world. The major inter- law (Fox 1992; Franck 1992; Fox and Roth national economic institutions – the World 2000). Brown Weiss argues that such a right Trade Organization, the World Bank, and the under international human rights law atten- International Monetary Fund – explicitly uates the obligation of an occupying power promote market liberalization. But there is no to respect or preserve the legal order of the international legal requirement (under human defeated regime (Brown 2004: 41–44). It can rights law or any other body of law) that states also be argued that states have not always been must adopt the liberal, market model. willing to condemn changes in the form of Some commentators in the field of IL have government of an occupied country, especially thus concluded that the CPA’s economic when the reforms aimed at the establishment reforms in Iraq are harder to justify under of constitutional democracy, or when, after international law than, for example, the legal a war, the former rulers of the occupied ter- reforms while others argue that the transfor- ritory were not going to return to power. mation of Iraq’s economy exceeded the The authority of the occupiers to impose authority conferred by the international law democracy, however, is limited by the right of occupation. Furthermore, the reforms, of the local population to self-determination. especially the removal of restrictions on for- That is, a new set of political institutions, eign ownership and repatriation of profits, even democratic ones, must be accepted as appear self-serving, especially given the legitimate by Iraqis (Brown 2004: 41–44). prominent role of U.S. firms in Iraqi recon- The Transitional Administrative Law, pro- struction. The economic restructuring will be mulgated by the CPA and the Iraqi Governing difficult for a future Iraqi government to mod- Council, led to a process that was congruent ify or reverse, imposing durable restrictions with the Iraqis’ right to self-determination: on the country’s economic sovereignty. election of an assembly to draft a constitution, The controversies surrounding the legality a national referendum to approve the consti- of the institutional reforms carried out by tution, and a government elected under the the coalition in Iraq highlight the need for new constitution.15 further development of occupation law. 232 9780415418768_4_015.qxd 26/11/2008 02:38PM Page 233

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Scheffer suggests that a new body of occu- Conventions and by attempting to curtail Red pation law would provide much needed Cross visits to the prison ( Jehl and Schmitt international standards for permissible insti- 2004). A number of NGO reports16 and tutional and legal changes in the rebuilding official investigations17 have since detailed var- of failed or formerly repressive states. New ious categories of physical and psychological rules could apply both to belligerent occupa- mistreatment of Iraqi prisoners. This analysis tions and to U.N. peacekeeping and inter- focuses on detainee abuse,18 as well as on “ghost vention missions (Scheffer 2002). Ratner has detainees” and renditions. further developed that theme, arguing that At all times in Iraq, the applicable inter- occupation by states and occupation by national rules included, at a minimum, the international organizations share a common Geneva Conventions. All persons detained by legal framework. Both operate at the inter- coalition forces in Iraq are therefore protected section of international humanitarian law, either as prisoners of war (GC III, Relative international human rights law, local law, and to Prisoners of War) or as civilians (GC IV, mandates from international organizations Relative to the Protection of Civilian (Ratner 2001–2002). It could, furthermore, Persons in Time of War) (Sadat 2007: 325). be argued that the gap between conservationist GC III covered Iraqi combatants captured by occupation law and the need for institutional the coalition during the hostilities (that is, until transformation in many post-conflict soci- May 2003). GC IV protected all other cate- eties could be bridged by the application of gories of detainees, namely, persons arrested human rights law to military occupations and for crimes, persons arrested for hostile acts by a formal Security Council role in specify- against coalition forces, and persons detained ing the goals of an occupation and authoriz- for “imperative reasons of security.” ing specific reforms. After the end of combat operations, the coalition faced armed resistance from various groups and militias. Because these groups did Treatment of detainees not represent the Iraqi state or its armed forces (both of which had ceased to exist), their mem- The worldwide dissemination in April and bers were not covered by GC III (Prisoners May 2004 of photographs from Abu Ghraib of War). They were, however, protected by prison revealed appalling abuses committed GC IV, whose Article 4 extends its protec- by U.S. personnel against detainees in Iraq. tions to all those “who, at a given moment The mistreatment of prisoners in Iraq had and in any manner whatsoever, find them- actually begun much earlier. Beginning in selves, in case of a conflict or occupation, in May 2003, the International Committee of the hands of a Party to the conflict or an the Red Cross (ICRC), Amnesty Inter- Occupying Power of which they are not national, and the Special Representative of nationals” (Convention (IV) Relative to the the Secretary General had reported to U.S. Protection of Civilian Persons in Time of War authorities numerous instances of detainee 1949).19 Coalition troops are still, as of this abuse (International Committee of the Red writing, fighting various kinds of insurgents Cross 2005: sec. 3.4; Amnesty Interna- in Iraq, which means that they are engaged tional 2003: sec. 5; United Nations 2003d: in ongoing “armed conflict not of an inter- ¶ 47). national character” (GC IV, Article 3). GC The Red Cross had also expressed concern IV therefore continues to apply to suspected over mistreatment it observed during visits to insurgents detained by coalition forces in Abu Ghraib in October 2003. The U.S. mil- Iraq. GC IV requires that all detainees “be itary responded by asserting that many Iraqi treated humanely” and prohibits, “at any prisoners were not covered by the Geneva time and in any place whatsoever . . . violence 233 9780415418768_4_015.qxd 26/11/2008 02:38PM Page 234

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to life and person, ...cruel treatment and tor- These prisoners were kept “off the books.” ture,” and “outrages upon personal dignity, The Taguba Report found that on at least one in particular humiliating and degrading occasion, military police at Abu Ghraib treatment” (Article 3). In short, the Geneva moved 6–8 ghost detainees around within Conventions ban any abuse of detainees the facility “to hide them from a visiting . . . in Iraq, from the date of the invasion to the [Red Cross] survey team,” a practice that the present. report condemned as a “violation of interna- The detainee abuses documented at Abu tional law” (Taguba Report 2004: 26–27). The Ghraib and other sites clearly violated these Department of Defense reportedly acknow- norms. The Taguba Report concludes that ledged that the number of ghost detainees U.S. military personnel had “committed may have reached 100. The Jones-Fay Report egregious acts and grave breaches of interna- criticized the CIA’s ghost detainee program tional law” (Article 15-6 Investigation of the 800th as leading to a “loss of accountability.” The Military Police Brigade (The Taguba Report) 2005: report strongly recommended that military 50), and repeatedly recommends that personnel ensure that the CIA follow detainees, guards, interrogators, and their Department of Defense procedures for reg- ofﬁcers all be instructed in the requirements istering detainees, so that military personnel of the Geneva Conventions and that the would “never be put in a position that Geneva rules be clearly displayed in deten- potentially puts them at risk for non- tion facilities. The Schlesinger Report likewise compliance with the Geneva Convention declares that the war in Iraq “is an operation or Laws of Land Warfare” ( Jones-Fay Report that clearly falls within the boundaries of the 2004: Executive Summary). The Schlesinger Geneva Conventions and the traditional law Report notes that Defense Secretary Donald of war. From the beginning of the campaign, Rumsfeld “publicly declared he directed one none of the senior leadership or command detainee be held secretly at the request of the considered any possibility other than that the Director of Central Intelligence” (Schlesinger Geneva Conventions applied” (Schlesinger Report 2004: 87). Report 2004: 82). The existence of ghost detainees in itself The same report also determines that violates the Geneva Conventions, as the coercive interrogation techniques had been Taguba Report noted. GC III requires that applied unlawfully in Iraq to “detainees who prisoners of war “be enabled to write direct” did fall under the Geneva Convention pro- to their families, immediately on capture or tections” (Schlesinger Report 2004: 14). no more than one week after arrival in a camp Whereas U.S. ofﬁcials condemned the (Article 70). Prisoners must be allowed to physical mistreatment of detainees in Iraq, correspond to the outside via letters and they have sought to justify two other highly cards (Article 71). Representatives of the controversial practices: “ghost detainees” Red Cross are entitled to visit all detention and renditions. “Ghost detainees” are prisoners and transit facilities, to determine the length held by coalition (in practice, U.S.) forces and frequency of such visits, and to interview but whose names are not entered on prison prisoners without witnesses present (Article records and whose detention is therefore 126). GC IV creates identical rights and kept secret. According to all of the reports, obligations with respect to all other categories the Central Intelligence Agency (CIA) was of detainees (Articles 76, 108, and 143). By responsible for the problem of ghost holding ghost detainees, U.S. personnel detainees. The CIA brought “high value” violated these provisions. detainees (that is, prisoners suspected of “Rendition” (sometimes also called belonging to Al Qaeda or other terrorist “extraordinary rendition”) is a practice by groups) to Abu Ghraib for interrogation. which U.S. agents have secretly transferred 234 9780415418768_4_015.qxd 26/11/2008 02:38PM Page 235

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detainees to the custody of another country. facilitate interrogation, for a brief but not The purpose of such transfers is to allow the indefinite period” (Goldsmith 2007: 2). detainees to be subjected to coercive inter- Although the opinion was a draft, the CIA rogation techniques, including torture, in reportedly has relied on it as the legal basis the receiving country. Through renditions, for its program of renditions. That reliance the United States has sent persons seized appears to be misplaced: there has been a com- or detained in Afghanistan, Iraq, and several prehensive refutation of the opinion’s inter- European countries to Egypt, Jordan, pretation of Article 49, arguing on the basis Morocco, Saudi Arabia, Syria, and Yemen – of the plain meaning of the text, linguistic all of which have been cited by the U.S. State considerations, the historical context of the Department for interrogations involving the Geneva conventions, and customary law and use of torture (Association of the Bar of the international practice (Sadat 2006: 237–38). City of New York and Center for Human Indeed, commentators have concluded that Rights and Global Justice 2004: 8–9). The extraordinary renditions are a grave breach U.S. government, not surprisingly, is offici- of the Geneva Conventions and that they ally silent with respect to renditions, but violate various international human rights numerous officials have acknowledged the conventions, including the Convention practice obliquely or informally. In Iraq, against Torture, the ICCPR, the Universal about 12 detainees were transferred to other Declaration of Human Rights, the Conven- countries through rendition prior to Octo- tion and Protocol Relating to the Status of ber 2004. Refugees, and the Vienna Convention on International humanitarian law prohibits Consular Relations (Sadat 2006: Weissbrodt such transfers. Article 49 of GC IV stipulates and Bergquist 2006). that “individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Conclusions Occupying Power or to that of any other country, occupied or not, are prohibited, The coalition invasion of Iraq was an imper- regardless of their motive”. Article 76 of the missible use of force. The invasion did not same convention requires that the detaining fall within either of the two exceptions to the power notify the ICRC of any transfers of general prohibition (U.N. Charter Article 2(4)) protected persons, even those of brief dura- on the use of force: it was not an exercise of tion and within the occupied territory. The the right of self-defense in response to an rendition of detainees from Iraq violates imminent threat, neither was it authorized Article 49; the secrecy of the transfers con- by the Security Council. States decisively travenes Article 76. rejected the U.S. and British contention that A draft opinion prepared by the Office the use of force was authorized by prior of Legal Counsel in the U.S. Department of Security Council resolutions; legal scholars Justice opens an exception to the U.S. gov- have pointed out any number of crippling ernment’s oft stated position that all persons flaws in the U.S. and British arguments. The detained in Iraq are fully covered by the more speculative assertion, that a doctrine of Geneva Conventions. The draft opinion, anticipatory self-defense actually justified the dated March 19, 2004, concludes that the attack on Iraq, has similarly suffered from United States may legally transfer protected telling critiques. Indeed, the debates seem persons “who are illegal aliens from Iraq to have strengthened the traditional Caroline pursuant to local immigration law” and may criteria governing anticipatory self-defense: relocate protected persons (whether or not the use of force is permitted in advance of an they are illegal aliens) to other countries “to actual attack only if such an attack is about 235 9780415418768_4_015.qxd 26/11/2008 02:38PM Page 236

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to occur, other modes of responding would Indeed, in its quest to gain intelligence be unavailing, and the use of force is both on terrorist groups and their plans, the Bush necessary and proportionate. administration has systematically sought The occupation of Iraq raised pressing to evade international rules governing the questions regarding the tension between humane treatment of detainees. From Sep- traditional international rules that narrowly tember 2001 on, the Bush administration limit the prerogatives of occupying powers and has claimed that coercive interrogation tech- the need for transformation in Iraq’s political, niques, including methods that are widely legal, and economic institutions. More than regarded as torture, are necessary in order to anything, the legal debates have highlighted extract from suspected terrorists timely infor- the need to adapt occupation law to take into mation that could prevent further attacks. account modern human rights law, thereby The documentary trail is by now conclusive establishing international standards for the in establishing that the Bush administra- reform and restructuring of failed and formerly tion has based its policies and operational repressive regimes. The new norms should directives on its own decisions that: govern transformative occupations whether the agents of change are international bodies 1 Existing international law on torture is (such as the United Nations) or coalitions of an outmoded obstacle to gaining use- states.20 able intelligence from detainees. Issues relating to the treatment of 2 The President of the United States, detainees are of more than historical or doc- when acting as Commander-in-Chief trinal interest; they raise ongoing questions of of the armed forces, is unbound by inter- responsibility for violations of international law. national law, the U.S. Constitution, or Torture; cruel, inhuman, or degrading treat- domestic statute. ment; ghost detainees; and renditions have 3 The president is acting under his occurred in Iraq, Afghanistan, Guantánamo commander-in-chief power when Bay, and secret sites on several continents. The taking actions under the so-called global pattern of U.S. conduct with regard “global war on terror.” to detainees suspected of terrorist connections 4 Iraq is a “central front” in the war on disproves the Bush administration’s assertions terror. that the crimes committed at Abu Ghraib were 5 The president may therefore authorize the work of a small number of “bad apples.” harsh and coercive interrogation tech- More troubling, the unlawful practices docu- niques to be used on detainees in mented in Iraq have been, and continue to Afghanistan, Iraq, Guantánamo Bay, be, at the heart of the U.S. government’s and elsewhere. approach to dealing with captives in its 6 Techniques that intentionally inflict so-called “war on terror.” Recent reports physical or mental “severe pain or reveal that Justice Department memoranda suffering” (Convention against Torture, from 2005 authorized the CIA to employ Art. 1) do not fit within the U.S. “painful physical and psychological tactics, government’s narrow definitions of including head-slapping, simulated drowning torture. and frigid temperatures.” (Shane et al. 2007) 7 U.S. personnel who employ such The existence of the still unpublished opin- techniques are immune from prosecu- ions, approved by then Attorney General tion under U.S. law. Alberto Gonzales, shows that the Bush 8 In any case, certain categories of administration continues, to the date of this detainees – “unlawful combatants” – writing, to authorize torture and related fall outside Geneva and other legal abusive practices. protections. 236 9780415418768_4_015.qxd 26/11/2008 02:38PM Page 237

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In other words, both the White House and cover for illegal activities may thus have the Department of Defense, through a series participated in a common plan to permit war of official policies and interpretations, have crimes, or abetted the commission of war made it clear that, when interrogating crimes, raising the prospect of individual detainees, traditional limits no longer apply; civil or criminal liability. Legal action against the end of gaining intelligence justifies the U.S. officials is unlikely, given current polit- coercive means needed to obtain it. Even if ical realities. But, as the Pinochet case reminds high-level military and government leaders did us, realities can change. not openly order torture, their subordinates down to the operational level (at Abu Ghraib, for example) could not help but Notes understand that they were expected to extract information from detainees even if 1 Both legal commentators and public officials it meant employing cruel, inhuman, or deploy a variety of words to capture the idea degrading methods, or torture. Thus one referred to here. The terms “preemptive,” “preventive,” and “anticipatory” are all in common (unnamed) U.S. official could still go on record use, sometimes interchangeably. For the sake to declare: “If you don’t violate someone’s of clarity, I use “anticipatory self-defense” to human rights some of the time, you prob- refer to any use of force by a state against a ably aren’t doing your job.” The official threat, before that threat has produced an reports issued in the wake of Abu Ghraib all actual attack. “Preemptive self-defense” is a subcategory of anticipatory self-defense, in which establish that the legal and policy decisions that a state uses force to counter an attack that is justified and encouraged abusive interrogation imminent (about to occur). “Preventive self- practices filtered down to the units guarding defense” is another subcategory of anticipatory and interrogating detainees. The Jones-Fay self-defense, in which a state uses force to halt Report concludes that U.S. personnel at Abu the development of a threat that could, at some future time, produce an armed attack (that attack Ghraib felt “intense pressure . . . from higher not yet being imminent). headquarters, to include CENTCOM, the 2 This conclusion assumes significance in light Pentagon, and the DIA [Defense Intel- of repeated post-war U.S. assertions that, ligence Agency] for timelier, actionable despite the absence of weapons of mass intelligence” (as reproduced in Danner destruction and links to al Qaeda, the war was justified because “the world is better off with- 2006: 47–8). The Schlesinger Report affirms that out Saddam Hussein in power.” coercive interrogation techniques author- 3 Papastavridis argues persuasively against the ized by the Secretary of Defense for use at applicability of standard principles of treaty inter- Guantánamo Bay “migrated to Afghanistan pretation, including the Vienna Convention and Iraq where they were neither limited nor on the Law of Treaties, to Security Council resolutions (see Papastavridis 2007). safeguarded” (as reproduced in Danner 4 The other eight countries expressing similar 2006: 37; see also the Jones-Fay Report). convictions were Bulgaria, Cameroon, China, A substantial body of analyses overwhelm- Colombia, Ireland, Mexico, Russia, and Syria. ingly concludes that the legal bases for the Bush 5 The “Downing Street Memo” was first pub- administration’s authorization of torture and lished in the Sunday Times on May 1, 2005. The document, dated 23 July 2002, summar- cruel, inhuman, or degrading treatment are izes the report of British director of foreign 21 profoundly and irreparably flawed. By jus- intelligence Sir Richard Dearlove following a tifying and promoting harsh detention and visit to Washington, DC. Dearlove reported interrogation practices, the U.S. government that, in the U.S. government, “military action has encouraged conduct that violates the was now seen as inevitable,” and that the “intelligence and facts were being fixed around the Geneva Conventions and therefore consti- policy.” tutes war crimes. Specific officials responsible 6 The controversies have generated calls for for authorizing, ordering, or providing legal clearer standards for interpreting Security 237 9780415418768_4_015.qxd 26/11/2008 02:38PM Page 238

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Council resolutions. For one such appeal, and English version still in use incorrectly translates a proposed set of interpretive principles, see the relevant phrase as “public order and Papastavridis 2007. safety.” 7 The discussion here presumes that the cus- 13 Dorosin was at the time Attorney-Adviser in tomary criteria for anticipatory self-defense con- the U.S. Department of State, speaking in his tinue as international law alongside the U.N. private capacity. Charter rules on the use of force, especially Art. 14 The discussion here avoids the vexed question 2(4). An alternative view is that Art. 2(4) sup- of the extent to which Security Council re- plants previous customary law and permits the solutions adopted under Chapter VII can use of force only in the case of an actual armed override general international law. Dorosin cites attack. The debate on this point is beyond the Article 103 of the U.N. Charter to support his scope of this essay, but Shaw (2003) offers argument that the resolutions regarding Iraq did overviews of the main positions. supersede traditional occupation law. 8 Dinstein adopts yet a different view. He 15 Wheatley argues that the creation of the tran- asserts that there is no right to preventive self- sition government was not compatible with the defense under either the Charter or custom- right of Iraqis to self-determination, though the ary international law; force is justified only establishment of a constitutional government against an attack actually occurring. Dinstein was; see Wheatley (2006), arguing that impo- argues that no Security Council resolutions were sition of democracy by an occupying power necessary for the Persian Gulf war (1991), which violated Article 43 of the Hague Regulations was justified simply as collective self-defense; (533). that the coalition had been in a continuous state 16 Both Amnesty International and Human Rights of war with Iraq since then, with an extended Watch have published numerous reports on period of ceasefire (1991–2003); that Iraq’s vio- torture and other abuses of detainees. lation of Resolution 687 released the coalition 17 The principal official investigations of the from its obligation to observe the ceasefire; and prisoner holding area at Abu Ghraib and other that, therefore, the 2003 invasion of Iraq was instances of detainee abuse are the Taguba Report, fully justified under the inherent right to the Fay-Jones Report, and the Independent Panel collective self-defense that initially justified the Report (also known as the Schlesinger Report). war in 1990 (see Dinstein 2005). The Taguba Report is available online at http:// 9 As various commentators have observed, U.S. www.fas.org/irp/agency/dod/taguba.pdf. officials consistently avoided referring to the The Jones-Fay Report is available at http:// U.S. presence in Iraq as an “occupation” or to www4.army.mil/ocpa/reports/ar15-6/AR15- U.S. forces there as “occupiers.” U.S. officials 6.pdf, and the Schlesinger Report is available at preferred to describe coalition troops as “lib- http://www.defenselink.mil/news/Aug2004/ erators.” Yet it has been pointed out that the d20040824finalreport.pdf. choice of terms was a rhetorical tactic rather 18 This category includes physical and psycho- than a meaningful legal distinction. In any logical mistreatment of detainees, including case, the United States never questioned the punching, kicking, and beating detainees; applicability of occupation law. prolonged forced nudity; sexual humiliation; 10 Yoo contends that occupation law permits simulation of electric torture; use of unmuz- far reaching reforms of the institutions of the zled dogs; and rape and threatened rape; see occupied territory, especially given state prac- Article 15-6 Investigation of the 800th Military Police tice in the 1940s and since (Yoo 2004). Brigade (The Taguba Report) (2004). 11 Although Yoo argues that the Hague 19 Both Geneva Conventions also applied dur- Regulations do not apply in Iraq because Iraq ing the period of occupation; Article 2 of each is not a party to that convention; see ibid. Convention stipulates that each “shall also apply 12 The authentic French text of Hague Regu- to all cases of partial or total occupation.” lations Art. 43 establishes the obligation of the 20 Unilateral occupation for the purpose of occupier “de rétablir et d’assurer, autant qu’il regime change and institutional transformation est possible, l’ordre et la vie publics.” The would be indistinguishable from the illegal, uni- French version thus requires the occupier lateral use of force. to restore and maintain both public order and 21 For a sample of such analyses, revisit any of the public, or civil, life. The (non-authentic) references already given in this chapter.

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16 The International Criminal Court

Beth Simmons and Allison Danner

This chapter describes the history and structure of these states to sign peace agreements to address the International Criminal Court (ICC), a per- domestic war. manent court, created in 1998, dedicated to prosecuting individuals for violations of war crimes and The International Criminal Court (ICC) is one genocide. With limited exceptions, the ICC will of the newest, most ambitious, and most only hear cases in which either the state where controversial of international organizations. the crime occurred or the state whose national is The Court is designed to prosecute a small accused of committing the crime has ratified the ICC number of exceptionally serious crimes at the treaty. Simmons and Danner argue that the most international level. Its ultimate justification lies puzzling question about the ICC is why states cre- in the hope that it will prevent future occur- ated the Court and why any state – particularly rences of mass atrocity. Whether the Court those whose leaders may be at risk for prosecution can accomplish this lofty goal, however, is far – would join the institution. Based on empirical from certain. Although on paper the ICC has analysis of the states that joined the ICC in its serious enforcement powers – it can, for exam- first 5 years, they advance a tentative hypothesis, ple, send convicted individuals to jail for the developed more extensively elsewhere. They argue rest of their lives – the ICC depends on state that the ICC serves a mechanism by which leaders cooperation for its principal tasks. It relies may make a costly commitment both to the inter- on states to provide logistical support for national community and their domestic supporters its investigations, to arrest its defendants, and and opponents to ramp down the level of violence to provide its funding. This dependence on in a civil war setting, thus setting the stage for peace- state cooperation provides a political reality ful resolutions to domestic conflicts. Their evidence check on the Court’s function and constitutes suggests that governments in power in countries with one of the ICC’s greatest weaknesses. The weak accountability mechanisms that have recently Court opened its doors in 2002 and has inves- experienced a civil war are much more likely to tigated a modest number of cases since that ratify the ICC statutes than countries with civil time. Given the difficulty of building cases wars that do have relatively strong accountability involving international crimes, a slow start was mechanisms in place. They also find that ICC to be expected. For many observers, the most ratification is associated with interruptions in civil startling fact about the ICC is that it came into war violence and a somewhat higher tendency for being at all. 239 9780415418768_4_016.qxd 26/11/2008 02:38PM Page 240

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History of the ICC made dramatic strides in the development of a body of international criminal law and pro- The ICC traces its roots to the international cedure that existed only in skeletal form after military tribunals at Nuremberg and Tokyo Nuremberg and Tokyo. As of October 2007 set up in the waning days of the Second World the ICTY had sentenced 52 individuals and War. These tribunals, established by the a further 53 others were in custody in the Allies to try defeated members of the Axis ICTY’s jail and facing ongoing proceed- powers, each conducted one “mega trial” and ings.1 As of this date, the ICTR had com- then was closed (Bass 2000). In 1947, the pleted proceedings against 27 individuals, six United Nations General Assembly instructed cases were on appeal, and 35 others were its Committee on Codification of Inter- ongoing.2 The qualified success of the ICTY national Law to prepare a draft code for an and ICTR gave new impetus to the negoti- international criminal court. In the heat of the ations over the ICC. The establishment of the cold war, however, neither the United States ICTY and ICTR was relatively uncontro- nor the Soviet Union found an international versial. This was due, in part, to the fact that court to be in its interest, and the movement no members of the Security Council (with died a quiet death. the exception of Rwanda, which voted In 1989, Trinidad and Tobago introduced against the ICTR) had any concern that a suggestion in the United Nations General their nationals would face prosecution in Assembly for the establishment of a special- these courts. Indeed, one of the most persis- ized international court to combat trans- tent criticisms lodged against international national drug trafficking. The General criminal justice has been that its punish- Assembly, in turn, requested that the ments fall solely on individuals from militar- International Law Commission (the suc- ily defeated and regionally weak countries. cessor of the Committee on Codification of Supporters of the ICC intended for this International Law) draft a proposed statute court to be quite a different animal. In their (Bassiouni, et al. 1999). This draft became the vision, nationals of all countries would negotiating text for the ICC treaty. potentially be subject to the strictures of The quest for a permanent international international criminal justice. Whether this goal criminal court also gained steam from the would be reflected in the court’s jurisdiction creation of two temporary tribunals by was the principal bone of contention during the United Nations Security Council in the ICC treaty negotiations. the early 1990s. These tribunals, the Inter- national Criminal Tribunals for the Former Yugoslavia (ICTY) and the International Negotiating the ICC Treaty Criminal Tribunal for Rwanda (ICTR), were set up in The Hague and in Arusha, The final text of the ICC Treaty was Tanzania, respectively, to prosecute interna- hammered out in a conference held in the tional crimes associated with the brutal wars summer of 1998 in Rome, Italy.3 Based on that occurred in the Yugoslavia and Rwanda the place of its location, the ICC treaty is in the 1990s. The ICTY and ICTR, which widely known as the “Rome Statute.” are still in existence as of 2007, have proved Negotiators worked from the draft text that expensive and slow. The jurisdiction of each had been prepared by the International Law court is limited to crimes committed in those Commission. This text was deferential of state countries. But they have also demonstrated sovereignty and set up an enforcement that international criminal justice can be scheme that has been described as “jurisdic- accomplished outside of the Second World tion à la carte” (Williams 1999: 337). Like the War context. The ICTY and ICTR have jurisdictional scheme of the International 240 9780415418768_4_016.qxd 26/11/2008 02:38PM Page 241

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Court of Justice, it essentially required state 1999: 14). The remaining states took various consent for prosecutions on a state-by-state positions between those of the P-5 and the basis, even for states that had ratified the treaty. LMG. It also provided that the Court would not have Beyond the jurisdictional scheme of the jurisdiction over crimes arising out of any court, other major debates centered on situation being considered by the Security whether to have a prosecutor with the inde- Council under its Chapter VII authority pendent authority to bring cases, whether to (Williams 1999). These two considerations – criminalize crimes committed in civil wars, the relationship of the Court to the Security how to define crimes against humanity, and Council and the prerequisites for all cases not whether to include the crime of aggression referred by the Security Council – were the within the court’s jurisdiction. The United central jurisdictional questions in the negoti- States’ objective with regard to the jurisdic- ation of the ICC treaty. tional scheme was simple and inflexible: No Unsurprisingly, the permanent members U.S. national should be vulnerable to prose- of the Security Council (P-5) wanted a strong cution by the ICC. When it became clear that role for the Security Council. These coun- most states wanted the Court to have juris- tries advocated that the Security Council be diction over cases even if some members of able to refer cases to the Court and block the the Security Council objected, the permanent Court’s investigation or prosecution of cases members of the Council put forth a proposal under its consideration. Essentially, the Secu- that would have allowed states to opt out of rity Council members, and particularly the the Court’s jurisdiction over their nationals United States, wanted the ICC to function for crimes against humanity and war crimes as a type of permanent ad hoc criminal tri- (but not genocide) for a renewable ten-year bunal in the model of the ICTY and ICTR. period. This proposal did not garner The drive for a strong court was led by the significant support. The treaty’s key points “Like-Minded Group” (LMG), an influen- remained highly contentious until the last tial group of states composed of approximately hours of the Rome Conference. The final text 60 members. Led by Canada, it also included was presented to the delegates in the waning most members of the European Union (but hours of the conference as a package deal not not France), Australia, Brazil, and South subject to renegotiation. The treaty was ulti- Africa. The LMG shared a “commitment to mately adopted by a vote of 120 states in favor, an independent and effective Court” (Kirsch 7 against, and 21 abstentions. Among those and Robinson 2002: 70). It generally accepted voting against the treaty were the United a role for the Security Council in referring States, China, and Israel (Lee 1999). cases to the Court but argued that the Court should have jurisdiction over other cases on the basis of universal jurisdiction. In this Jurisdiction and structure of context, universal jurisdiction meant that the the ICC Court would have jurisdiction over any individual who committed a crime within the Prosecutions at the ICC are limited to cases jurisdiction of the Court anywhere in the involving three crimes, as defined in the Rome world, as long as a state party to the ICC treaty Statute: genocide, crimes against humanity, had custody over the individual. The LMG and war crimes.4 So-called “treaty crimes,” was supported to a significant degree by the including drug trafficking and terrorism, hundreds of NGOs that were working at were not included in the final treaty. Rome during the negotiations and who are Furthermore, the Court has jurisdiction only widely seen as having an influential role in over crimes that occur after July 1, 2002, the the ultimate outcome of the treaty (Lee date of entry into force of the Rome 241 9780415418768_4_016.qxd 26/11/2008 02:38PM Page 242

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Statute.5 Unless the Security Council has meaning that prosecutions at these interna- referred the relevant situation to the Court, tional courts took precedence over domestic the ICC will not have jurisdiction unless either prosecutions. The scheme is reversed with the the state where the crime occurred or the state Rome Statute. Under the ICC, states with whose national is accused of committing the domestic jurisdiction over any possible crime crime has ratified the Rome Statute.6 first have the option of adjudicating the case Three sets of entities have the ability to in their domestic courts before the ICC can trigger investigations and prosecutions in the address it.14 In technical terms, a case is not ICC. The first is States Parties to the treaty. “admissible” in the ICC if a state is itself inves- Any state that has ratified the Rome Statute tigating or prosecuting it.15 The admissibility may refer a “situation” to the ICC’s Pro- procedures attempt to balance states’ desire to secutor if “one or more crimes within the control the Court’s docket with concerns that jurisdiction of the Court appear to have been states would exploit the complementarity committed.”7 The United Nations Security regime as a way of precluding the Court from Council may also refer a situation to the Pro- hearing a case that the state itself had no inten- secutor under its Chapter VII powers, which tion of pursuing. The Prosecutor can chal- are implicated by threats to or breaches of lenge the state’s assertion that the case is the peace and aggression.8 Finally, the Pro- inadmissible in the ICC because of an ongo- secutor may trigger the jurisdiction of the ICC ing domestic investigation or prosecution. The by commencing an investigation on the basis Court’s judges may find a case admissible in of information he has received; the source of the face of a domestic investigation or pros- the information is irrelevant.9 The Court’s ecution if the Court determines that “the state prosecutor is elected by the Assembly of States is unwilling or unable genuinely to carry out Parties (ASP), the representative body com- the investigation or prosecution,”16 or the posed of one member from each state. He state’s decision to investigate but decline to serves for one, nonrenewable nine-year bring charges “resulted from the unwilling- term.10 The International Criminal Court ness or inability of the state genuinely to pros- has eighteen judges, who will each serve one, ecute.”17 The ability of the ICC to override non-renewable nine-year term, although the a domestic prosecution, notwithstanding the terms of the first judges elected are of stag- complementarity principle, is one of the rea- gered lengths.11 They are elected by super- sons cited by U.S. officials for the country’s majority vote of the ASP.12 Any State Party refusal to join the Court. to the statute has the authority to nominate a judge to the Court. The judges must be of different nationalities and must either Membership and first cases be experts in criminal law or international law. They are also required to “possess the To many observers’ surprise, many states qualifications required in their respective have already joined the ICC. As of October, states for appointment to the highest judicial 2007, the Court had 104 members. There are offices.”13 more members from Africa than from any The most important innovation of the other continent, and Asia has the fewest. ICC lies in the “complementarity” regime. As of this writing, twenty-nine members are The complementarity system established by from Africa, twelve from Asia, sixteen from the Rome Statute reveals states’ unwillingness Eastern Europe, twenty-two from Latin to vest the Court with unfettered discretion America and the Caribbean, and twenty-five over international crimes. The ICTY and from Western Europe and “other,” which ICTR, and the Nuremberg and Tokyo tri- includes Canada, Australia, and New bunals before them, had “primary jurisdiction,” Zealand.18 There are many notable omissions 242 9780415418768_4_016.qxd 26/11/2008 02:38PM Page 243

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from the list of members. Non-members Court’s success can only be measured over the include China, the United States, Russia, Israel, long term. Iran, Iraq, India, and Pakistan. As of October 2007, the Court is in- vestigating four “situations” involving four Research on the probable effects countries. All four of the situations arise of the ICC from central Africa, a point of some controversy among court observers. The situations Thus far, few social scientists have given this involve crimes committed in the Demo- innovative institution close scrutiny.21 Those cratic Republic of the Congo, Uganda, the who have are often skeptical of its ability Central African Republic, and Darfur to deter international crime and encourage (Sudan).19 The first three situations all peace and stability. Jack Snyder and Leslie resulted from “self-referrals,” meaning that Vinjamuri argue that institutions bent on these countries themselves asked the Court doling out universal justice are likely to to prosecute the cases. This is a surprising cause more harm than good.22 Michael development, because the possibility that Gilligan offers a formal model that shows this courts would refer situations occurring in their is not necessarily true, however, and shows own countries was seen as highly unlikely formally that an institution such as the ICC during the treaty negotiations. Self-referrals might be able to deter some atrocities “on are less surprising when one realizes that all the margins” (2006). International lawyers these cases involve crimes allegedly com- are characteristically (though not uniformly) mitted by groups rebelling against govern- more optimistic. On the one hand, those such mental authority.20 The Security Council as David Scheffer or Payam Akhavan who have referred the situation involving Darfur to the had close involvement with such tribunals are ICC. This development, like many in the his- likely to attribute deterrent properties to tory of the ICC, was also a surprise. Most them (Akhavan 2001; Scheffer 2002). By con- observers had assumed that the United States trast, more removed legal scholars such as Julian would veto any Security Council resolution Ku and Jide Nzelibe argue that international referring a situation to the ICC. With regard criminal tribunals are hardly likely to deter to Darfur, however, the United States ulti- crimes by government opponents, whose mately chose to abstain in the vote over the calculations are overwhelmingly more likely referral. to be influenced by harsh local sanctions than With the exception of the situation in the by lighter and less likely international ones Central African Republic, the ICC’s prose- (Ku and Nzelibe 2006). cutor has issued arrest warrants against at least Optimists are likely to view international one individual in all of the situations under criminal tribunals as important influences on investigation. Symptomatic of the Court’s domestic values and cultural orientations weakness, however, only one person – of the toward violence (Kiss 2000); pessimists seven for whom arrest warrants have been (more plentiful among international relations issued – has been arrested. The ICC’s com- scholars and increasingly vocal in the legal plex institutional apparatus, therefore, has academy (Goldsmith 2003) remain largely thus far produced only one case that has moved unconvinced of such tribunals’ transformative beyond the preliminary phases. While early potential (Bloxham 2006). New research is weaknesses also marked the beginnings of the beginning to examine the empirical patterns ICTY and ICTR, this lack of progress proof support for and opposition to the Court vides fodder for those who accuse the ICC in an effort to infer motives for joining, and of being ineffectual. Supporters counter that from those, forecasts about its probable oper- the Court needs more time, and that the ation. Beth Simmons and Allison Danner have 243 9780415418768_4_016.qxd 26/11/2008 02:38PM Page 244

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modeled the ICC as a mechanism by which controversial, but now over one hundred leaders may make a costly commitment both states have formally committed themselves to to the international community and their cooperate with and become legally bound domestic supporters and opponents to ramp by the ICC’s statutes. Scholars are divided on down the level of violence in a civil war the probable effects of the institution on peace setting, thus setting the stage for peaceful and justice, although some early research resolutions to domestic conflicts (Simmons suggests the potential for positive conse- and Danner 2007). Their evidence suggests quences. Given that the Court is still in its that governments in power in countries with infancy, it is easier to establish the Court’s weak accountability mechanisms that have innovative ambitions than to confirm the scope recently experienced a civil war are much and nature of its influence. more likely to ratify the ICC statutes than countries with civil wars that do have relatively strong accountability mechanisms in Notes place. Simmons and Danner also find that ICC ratification is associated with interruptions 1 “Key figures of ICTY cases.” Available at in civil war violence and a somewhat higher http://www.un.org/icty/glance-e/index.htm. tendency for these states to sign peace agree- 2 “ICTR status of cases.” Available at http:// ments to address domestic war. 69.94.11.53/default.htm. Research by Judith Kelley shows that 3 For a more extensive description of the Rome negotiations, see Danner 2006. many states have maintained their commit- 4 Rome Statute, art. 5. The Rome Statute also ments to cooperate with the Court despite gives the Court jurisdiction over the crime of potentially costly pressure by the United aggression. The delegates at Rome, however, States not to do so. Kelley argues that these could not agree on a definition of aggression. states often cite a normative commitment to Aggression will come within the jurisdiction of the Court once the Assembly of states par- the principles of justice and the rule of law ties amends the Rome Statute to include a (2007). Although it is too early to project too definition of aggression. Rome Statute, art. 5(2). much based on these findings, their research According to the terms of the Rome Statute, suggests that the motives many states have for the earliest such an amendment can occur is submitting to the ICC may closely parallel in 2009, 7 years after the entry into force of the Treaty. Rome Statute, art. 121(1). those hoped for by its early supporters. 5 Rome Statute, art. 11(1). If a state ratifies the Rome Statute after July 1, 2002, the ICC will only have jurisdiction over crimes committed Conclusion after the entry into force of the Treaty for that state. Rome Statute, art. 11(2). 6 Rome Statute, art. 12(2). A state may also accept The International Criminal Court represents the jurisdiction of the Court on an ad hoc basis a significant innovation in international with regard to that particular situation. Rome criminal law. For the first time, a significant Statute, art. 12(3). number of states have been willing to 7 Rome Statute, art. 14. acknowledge the authority under limited 8 Rome Statute, art. 13(b). 9 Rome Statute, art. 15(1). circumstances of the international community 10 Rome Statute, art. 42. The ASP elected an to prosecute nationals who have committed Argentian, Louis Moreno-Ocampo, to serve some of the most egregious war crimes and as the ICC’s first prosecutor. crimes against humanity. It is not an institu- 11 The ICC’s first group of judges was elected in tion that supersedes national sovereignty in this February 2003. The following judges were elected (country of origin in parentheses): respect; it is clearly designed to complement Rene Blattman (Bolivia), Maureen Harding it. The effort to enhance the international Clark (Ireland), Fatoumata Dembele Diarra regime for criminal justice has been quite (Mali), Adrian Fulford (United Kingdom), 244 9780415418768_4_016.qxd 26/11/2008 02:38PM Page 245

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Karl T. Hudson-Phillips (Trinidad and sibility procedures, as “one of the most sen- Tobago), Claude Jorda (France), Hans-Peter sitive provisions of the Rome Statute.” (See Kaul (Germany), Philippe Kirsch (Canada), Holmes 2001: 335.) Erkki Kourula (Finland), Akua Kuenyehia 16 Rome Statute, art. 17(1)(a). (Ghana), Elizabeth Odio Benito (Costa Rica), 17 Rome Statute, art. 17(1)(b). Gheorgios M. Pikis (Cyprus), Navanethem 18 States parties to the Rome Statute, Pillay (South Africa), Mauro Politi (Italy), http://www.icc-cpi.int/statesparties.html. Tuiloma Neroni Slade (Samoa), Sanghyun 19 International Criminal Court, Situations and Song (Republic of Korea), Sylvia H. de Cases. Available at http://www.icc-cpi.int/ Figueiredo Steiner (Brazil), and Anita Usacka cases.html. (Latvia). The full listings are available at 20 A state that refers a situation to the Court, how- http://www.un.org/law/icc/elections/results/ ever, cannot limit the subject of the referral judges_results.htm. There have since been to particular individuals, so these countries run additional elections. the risk that the prosecutor may choose to 12 Rome Statute, art. 36(6). prosecute individuals afﬁliated with these 13 Rome Statute, art. 36. states’ governments. 14 See Rome Statute, Preamble (emphasizing 21 Exceptions include Fehl 2004. that the ICC “shall be complementary to 22 Snyder and Vinjamuri 2003–04. For a contrary national criminal jurisdictions”). view, arguing that the ICC in fact sets para- 15 See Rome Statute, art. 17. One commentator meters in which political settlements can take has labeled Article 17, which sets out the admis- place, see Méndez 2001.

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Section IV Key issues in international law 9780415418768_4_017.qxd 26/11/2008 02:39PM Page 248 9780415418768_4_017.qxd 26/11/2008 02:39PM Page 249

17 Fidelity to constitutional democracy and to the rule of international law

Russell Powell and Allen Buchanan

Until recently, international law was almost ex- sively concerned to regulate the behaviour clusively concerned to regulate the behaviour of states of states toward one another. In contrast, toward one another. In contrast, what may be called RIL claims the authority to regulate matters robust international law (RIL) claims the author- within states and even to prescribe how the ity to regulate matters within states and even to state is to treat its own citizens within its prescribe how the state is to treat its own citizens own territory. International human rights within its own territory. International human rights law is RIL par excellence, but international law is RIL par excellence, but international crim- criminal law and some international envir- inal law and some international environmental and onmental and trade law also purport to trade law also regulate conduct previously thought regulate conduct previously thought to be to be reserved for state control. In this chapter, we reserved for state1 control. focus on a fundamental question: Is the commit- International law, like all law, claims ment to (domestic) constitutional democracy com- authority. Yet international law does not patible with the commitment to robust international recognize domestic2 law, even domestic con- law? In the first section, we examine the question stitutional law, as limiting its authority. It of whether RIL is compatible with democracy, exam- claims supreme authority on those matters it ining claims that a state’s recognition of the supre- addresses.3 Such a claim is remarkable, given macy of RIL is inconsistent with democratic principles. that the constitutions of most states either We then go on to ask the same question about con- explicitly claim unlimited legal supremacy or stitutionalism that we asked in the first section about are implicitly regarded as enjoying it.4 How democracy: Is recognition of the supremacy of RIL can domestic constitutional law and interna- consistent with the principles that comprise the polit- tional law both be supreme with regard to the ical ideal of constitutional government? same domains of control? That question has become urgent with Over and above its astonishing proliferation, the development of effective RIL – law that perhaps the most remarkable development not only claims the authority to regulate in international law in the last few decades matters hitherto regarded as the prerogative has been the emergence of what might be of the state, but that is also increasingly called robust international law (RIL). Until backed by significant sanctions, including, in recently, international law was almost exclu- some cases, a credible threat of coercion. In 249 9780415418768_4_017.qxd 26/11/2008 02:39PM Page 250

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brief, both the reach and the grasp of inter- of which are not democratic, and in which national law have been augmented, even if enormous inequalities of power among states the former still exceeds the latter. The ques- can call the voluntariness of state consent into tion of compatibility is no longer a curiosity question. In the form of customary inter- of abstract jurisprudential theory; it is a press- national law, RIL is also a far cry from law ing practical matter. made by representative legislatures: whether RIL has emerged in an environment in a norm becomes customary international law which those who advocate the rule of inter- depends upon whether it gains sufficient national law generally also endorse constitu- support from powerful states (some of which tional democracy at the level of the state. But are not democratic), from unelected judges some who claim to be friends of domestic in international tribunals, and from promin- constitutional democracy now raise serious ent legal scholars. The norms promulgated doubts about its compatibility with RIL. by global governance institutions, such as These worries about incompatibility, as we the WTO, the Security Council, and various shall show, extend far beyond the question international environmental and regulatory of how to make international law’s unli- regimes also lack the legitimacy that demo- mited claim to supremacy consistent with cratic law-making processes are thought to the claims of supremacy that domestic con- confer at the domestic level; these institutions stitutions make. Some of the more serious are not democratic in anything like the way worries would remain even if every state con- that legitimate states are expected to be. From stitution explicitly recognized the supremacy this perspective, RIL’s claim to unlimited of international law or of certain types of inter- authority is especially problematic because national law, such as human rights law. The it amounts to the assertion that institutions problem of compatibility does not admit of of dubious legitimacy have the authority to a purely formal solution. override the norms of institutions that have a much stronger claim to legitimacy – namely, democratic states. Conflicting claims of legitimacy The scholarly debate about the compatibility of RIL and constitutional democracy has Concerns about the relationship between chiefly taken place in two venues: the rich RIL and domestic constitutions can be literature on the expanding authority of formulated as issues of competing claims to European Union (EU) institutions and the legitimacy, where legitimacy is understood much less developed literature that revolves as the right to rule. International law claims around the critique of RIL advanced by a legitimacy and does not qualify this claim by group of American constitutional and inter- acknowledging any superior legal authority, national law scholars sometimes referred to even where it purports to regulate the inter- as the “new sovereigntists”. The American nal affairs of states. Domestic constitutions side of the debate has been hobbled by three typically make a similarly unlimited claim self-imposed limitations: (1) an unwillingness regarding internal affairs. Thus there are to learn from the EU literature, (2) a failure conflicting claims of legitimacy. So far as their to distinguish clearly between the question of plausibility is concerned, however, there whether RIL is compatible with constitutional seems to be a stark asymmetry. The domin- democracy and whether it is compatible ant view is now that democracy is a require- with the current American constitution or ment of legitimate government. But RIL is American-style democracy and (3) a refusal not the product of democratic institutions. In to consider the possibility that when there the form of treaty law, it is the product of a are tensions between RIL and a state’s con- process of negotiation among states some stitution, one option worth considering is 250 9780415418768_4_017.qxd 26/11/2008 02:39PM Page 251

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whether the tension could be relieved by which acknowledging the supremacy of constitutional amendment. The first and RIL can impair the functioning of a state’s third self-imposed limitations, we will argue, constitution; and, second, that when the are related: If the new sovereigntists paid more acceptance of RIL involves either serious attention to the EU literature, they would find impairment of a state’s constitution or a it more difficult to ignore the option of con- significant loss of self-determination for the stitutional amendment to accommodate RIL, people whose constitution it is, then prin- because several EU countries have in fact made ciples of democratic constitutionalism require such an adjustment. It is perfectly appropri- a special form of democratic authorization – ate, of course, for scholars to focus on the either a new constitution, constitutional impact of RIL on the US Constitution or on amendment, or a special super-majoritarian American democracy, but it is wrong to slide legislative act. from claims about what is incompatible with Before turning to the question of com- that constitution or detrimental to that form patibility, it is important to be clear about of democracy to more grandiose assertions why it matters. The possibility that the com- about what is incompatible with constitu- mitment to RIL is incompatible with the tionalism or with democracy themselves. commitment to constitutional democracy In this chapter, we focus on the most is disturbing because both seem morally fundamental question: “Are the commit- compelling. Since the case for constitutional ments to (domestic) constitutional democracy democracy is better known, here we will only and to robust international law compat- sketch, in broad strokes, the chief reasons ible?”, while trying to avoid the limitations for acknowledging the authority of RIL.5 Our of the American side of the debate. In the first purpose is not to make the case for RIL but section, we consider whether RIL is com- simply to indicate the costs of abandoning the patible with democracy, examining claims development of RIL in the name of protect- that a state’s recognition of the supremacy ing constitutional democracy. of RIL is inconsistent with democratic prin- There are two types of reason for the cit- ciples. Here we argue that the charge of izens of constitutional democracies to urge inconsistency relies on implausible assumptions their leaders to acknowledge the authority of about democracy. We also argue, however, RIL. The first may be called self-regarding: that the expansion of RIL poses a fundamental These are reasons that apply independently problem for democratic states, a problem that of any cosmopolitan commitments on the democratic principles, including the prin- part of the citizenry. By “cosmopolitan com- ciple of subsidiarity, which has figured so mitments” here we mean commitments prominently in the EU literature, cannot grounded in a direct concern for the well- answer: How much self-government should being or protecting the interests of persons who a democratic people relinquish to international are not members of one’s own polity. institutions? In the second section, we ask the same question about constitutionalism that we asked in the first about democracy: Is recog- Self-regarding reasons nition of the supremacy of RIL consistent with the principles that comprise the political Acknowledging the authority of RIL can ideal of constitutional government? In this improve the functioning of constitutional section, we argue for two conclusions: First, democracies in at least four ways, independ- although RIL and constitutionalism are for- ently of whether it happens to fulfil cosmo- mally consistent in the sense that a constitu- politan commitments. First, by acknowledging tion can consistently acknowledge a superior the authority of RIL, governments can legal authority, there are circumstances in provide benefits that their citizens have 251 9780415418768_4_017.qxd 26/11/2008 02:39PM Page 252

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demanded, but which cannot be provided by sive pools of experts and can identify and learn unilateral action or by traditional-style bilat- from “best practices” developed elsewhere. In eral international agreements that do not some cases, acknowledging the authority of commit states to RIL. Robust international RIL is a necessary condition of reaping these legal regimes help solve coordination prob- epistemic gains. lems, provide global public goods, and avoid The foregoing four reasons to accept RIL or reduce negative externalities.6 should appeal to citizens of constitutional Second, even the best constitutional demo- democracies because of their positive effects cracies sometimes fail to provide equal pro- on domestic politics. Their force does not tection of the rights of some of their citizens. depend on the assumption that the citizens Furthermore, every constitutional demo- of a constitutional democracy are or ought to cracy is at risk for unjustifiably infringing be influenced by cosmopolitan commitments; civil rights generally, not just those of it does not presuppose a non-instrumental minorities or women, when there is a per- concern for the rights and interests of for- ceived national emergency, such as war or eigners. In addition to these self-regarding terrorist attacks. If a state acknowledges the reasons, there are reasons for acknowledging authority of international human rights law, the authority of RIL that carry considerable this can help mobilize political support, both weight from a cosmopolitan point of view. within the country and from without, for the protection of domestic constitutional civil and political rights. In some cases, types of Cosmopolitan reasons international law that are not typically categorized as human rights law, including law First, a commitment to robust international affecting economic development, can also human rights law and to the emerging in- have a significant positive impact on the stitutions of international criminal law can security of citizens’ civil and political rights, enhance the effectiveness of the efforts of to the extent that states acknowledge their the citizens and leaders of a constitutional authority in the domestic sphere. democracy in promoting the protection of the Third, all constitutional democracies in- basic interests of all persons. By promoting clude various institutional mechanisms for human rights through participation in inter- reducing the persisting risk that policy will national institutions, as opposed to acting unduly reflect the preferences of powerful unilaterally, a state can also assure others that special interests; but when such interests are its efforts are sincere and not a guise for the concentrated and the opposition to them is pursuit of narrow national interest. The per- diffuse, these domestic mechanisms may be ception of legitimacy can increase coopera- insufficient. When this is the case, participation and to that extent can make it more likely tion in international institutions that claim that the goal of better protection for all will robust legal authority may help counter the be achieved. power of special interests. For example, the Second, participation in robust interna- binding rules of the WTO that prohibit tional legal regimes can help to counter the trade discrimination have helped the US parochial bias of democratic politics. Con- Congress resist pressure from domestic pro- stitutional democracies are typically structured tectionist groups. to ensure that legislators and government Fourth, by participating in robust inter- officials are accountable to – and only to – national legal regimes, states can improve their own fellow citizens. Foreigners have public deliberation in domestic policymaking no votes and in some cases domestic law across a wide range of domestic policy areas: is explicitly intended to prevent “foreign they can more effectively draw on more exten- influences” on the policymaking process.7 252 9780415418768_4_017.qxd 26/11/2008 02:39PM Page 253

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Thus constitutional democracies systematically being the realist idea that the system of exclude from proper consideration the legit- restraint that international law provides is in imate interests of others that are affected by the interest of every state because no state can their actions. Acknowledging the authority reasonably expect to maintain a position of of RIL can help correct this bias by requir- domination). The question at hand, however, ing state policy that affects the basic interests is not whether the ideal of the rule of law sup- of foreigners to take those interests into ports a commitment to international law as account. In the next section, we will argue it was traditionally conceived, but whether it that it is a misunderstanding of democracy to supports a commitment to robust international hold that the government of a democracy must law. More precisely, do the basic moral be accountable exclusively to its own citizens. values that ground the commitment to the Third, acknowledging the authority of rule of law give the citizens and political RIL can be an expression of the commitment leaders of a constitutional democracy reason to the ideal of the rule of law. One of the to acknowledge the authority of international chief moral attractions of the rule of law is law even within domains that were previously that it embodies a commitment to not settl- thought to be protected by the veil of ing conflicts of interests and preferences by sovereignty? recourse to sheer power. This commitment The question is still insufficiently precise, does not rule out the resolution of conflicts because the answer may depend on what sort by force, of course, but it does require that of international law is involved. Consider the force not be the first resort and that when it case of international human rights law. It is is employed it is justified by publicly avail- appropriate to focus on human rights law able reasons of the right sort, what might be because it is perhaps the type of RIL that has called principled reasons, as distinct from been viewed with the greatest suspicion by mere threats or appeals to the interests of those those who say that fidelity to constitutional who happen to be the stronger. In interna- democracy and to RIL are incompatible. tional relations, where disparities of power are Disputes arise as to the meaning, scope and great, the moral case for the rule of law is cor- institutional implications of particular human respondingly strong. rights norms. Presumably the principle that There are several reasons to repudiate the conflicts should not be settled by sheer rule of sheer power. The need to protect the power applies to this sort of dispute; to vulnerable and to avoid unfairness are among exclude it seems arbitrary. If this is the case, the most obvious, but there is also the idea then the idea of repudiating the rule of sheer that respect for persons requires an appeal to power, which as we have seen lies at the heart their capacity to act on the basis of principled of the commitment to the rule of law, pro- reasons rather than relying solely or prim- vides a reason in favour of a powerful state arily on their capacity to respond to threats. such as the US not claiming the unqualified All of these reasons qualify as cosmopolitan, right to determine how human rights norms because they all assume the fundamental will be interpreted and applied to its own equal moral status of persons: all are to be actions or the conduct of its citizens or treated fairly; vulnerable persons generally, officials. When a powerful state claims the not just the vulnerable who are one’s fellow right to do this, it is in effect asserting that it citizens, are to be protected; all are to be is permissible for it to be a judge in its own respected by appealing to their capacity for case, to decide whether complaints that it being moved by principled reasons. has failed to protect human rights are valid. These basic moral attractions of the rule of Because it is a powerful state, its vulnerabil- law have always been one chief element in ity to sanctions by other states or international the case for having international law (the other organizations or world public opinion will be 253 9780415418768_4_017.qxd 26/11/2008 02:39PM Page 254

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relatively inconsequential, at least in cases in the law brings can be gained in some other which it has a strong interest in the outcome, way. Nonetheless, we hope that this brief dis- and this means that effective checks on its act- cussion makes clear the attractions of having ing in a self-serving, biased fashion will be an international legal system that includes absent. There will be a significant risk that the mechanisms for creating RIL. Keeping the conflict will be settled by sheer power – that potential benefits of RIL in mind, we will now is, in accordance with the interest of the pow- consider whether a commitment to RIL is erful simply because they are powerful – rather incompatible, with either democracy or than in a principled, publicly justifiable way. constitutionalism. At the very least, such a state bears a burden of argument to explain why the usual rule of law considerations that speak in favour of Are fidelity to constitutional not being a judge in one’s own case are not democracy and fidelity to robust dispositive in case of disputes over the inter- international law compatible? pretation and application of human rights norms.8 Whether these two commitments are com- One could, of course, argue that at pre- patible depends, of course, on what demo- sent the burden of explaining why the prin- cracy is. Remarkably, the new sovereigntists ciple that one shouldn’t be a judge in one’s who deny compatibility offer no explicit own case cannot be met in some areas of inter- conception of democracy and tend to assert, national law that most significantly challenge rather than to argue, that acknowledging state sovereignty. For example, some have the supremacy of robust international law argued that the defects of the current Inter- offends democratic principles. Even more national Criminal Court process are so great frustrating, they are sometimes unclear as to as to outweigh the rule of law reasons for whether the alleged incompatibility is with acknowledging the authority of the Court. democracy or with constitutional democracy Our aim here, however, is not to show that or with some particular constitutional demo- the commitment to the rule of law supplies cracies or with only one constitutional a conclusive reason to support any particular democracy (namely, the United States). To area of RIL, but only to show that it can pro- begin to assess charges of incompatibility we vide a reason to support RIL, depending on must first settle on a serviceable conception the circumstances. Moreover, when it does, of democracy. In doing so, we must avoid con- the reason it supplies is one that should carry troversial conceptions of democracy in order significant weight with those committed to not to prejudice the issue of compatibility. constitutional democracy, so far as the idea Democracy, in the most general and least of constitutional democracy subsumes or controversial sense, is a process for making presupposes that of the rule of law. decisions that will be binding on all members Taken together, the four self-regarding and of a group, each of which has an equal say the three cosmopolitan reasons show that there at some important stage or level of the pro- is a strong case for acknowledging the cess.9 When applied to modern, large-scale authority of RIL when certain conditions are states, the term usually connotes as well the satisfied. These reasons do not purport to pro- requirement that important government vide a blanket endorsement for all international officials, or at least legislators, are held law that claims robust authority. Rather, accountable through periodic elections in whether any of the reasons apply and the which citizens have equal votes. We will refer weight they carry may vary depending on what to this core idea of democracy as equal sort of law is involved and on whether the popular electoral accountability or popular benefits that acknowledging the authority of accountability for short. 254 9780415418768_4_017.qxd 26/11/2008 02:39PM Page 255

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It is crucial to note that this definition does to officials of global governance institutions not assume that all of the laws to which the or to judges of international tribunals. For citizens of a democracy are subject must be example, John Yoo (2000: 1715) appeals to made by their elected representatives (or broader, normative principles of constitu- voted on directly by the citizens themselves, tionalism to justify the priority of the as in referendum). So it is compatible with Appointments Clause of Article II of the US some domestic law being created through Constitution in its conflict with the new inter- judicial decisions and/or administrative national law, stating that: processes. This seems unexceptionable, if the goal is to settle on a moderately realistic con- The Framers . . . centralized the appoint- ception of democracy, one that can at least ments power because they feared the vest- be approximated, under reasonably favourable ing of power in officeholders who were circumstances, by the clearest examples of not accountable to the electorate, as had actual states that are generally regarded as occurred during the colonial period ...A democratic. centralized appointments process prevents With this broad and relatively uncontro- the national government, as a whole, from versial conception of democracy in mind, let concealing or confusing the lines of gov- us now consider four arguments – or in some ernmental authority and responsibility so that the people may hold the actions of the cases, reconstructions of intimations of argu- government accountable. Allowing the ments – that purport to show that the com- transfer of command authority to non- mitment to democracy at the domestic level and U.S. officers threatens this basic principle of the commitment to RIL are incompatible. government accountability. International It should be emphasized that our purpose or foreign officials have no obligation to here is analytical, not exegetical. In each case pursue American policy, they do not take we will reference work by new sovereigntists an oath to uphold the Constitution, nor that at least suggests a given argument, but we can any American official hold them 10 make no effort to document conclusively who responsible for their deeds. advances which argument. One reason for this approach is that some of the theorists in ques- If this first objection is understood to apply tion are unclear as to which arguments for only to the US Constitution, the claim is that incompatibility they are advancing in a given acknowledging the authority of RIL, or context. Another reason is that each scholar some instances of RIL, violates the constraints who is sceptical of delegations to international on delegation of executive authority set out institutions has her own nuanced view of the in the Appointments Clause of the US constitutionally appropriate scope of delega- Constitution. As we have already emphasized, tion, and consequently it is difficult to bring however, our focus in this chapter is not on all of these authors under a single, uniform whether RIL is compatible with distinctive conceptual umbrella. features that particular democratic constitutions may or may not have, but on the more basic question of whether it is compatible The exclusive accountability with constitutional democracy itself. In this argument section, we are sorting out incompatibilist This is the claim that democracy requires objections that pertain to the democracy part that every official who exercises political of constitutional democracy. So the ques- authority over the citizens of a state must be tion is whether democracy requires that all accountable solely to those citizens. The political authority exercised over citizens of concern here is primarily with the delegation a democracy must be accountable exclu- of legal authority over the domestic citizenry sively to those citizens. 255 9780415418768_4_017.qxd 26/11/2008 02:39PM Page 256

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According to the broad and relatively un- The democratic deficit argument controversial definition of democracy adduced earlier, the answer is clearly “no”. Democracy, One theme common to the EU literature on this definition, requires that any official who and the American literature is the idea that wields political authority over the citizens of international legal regimes suffer a “demo- a democracy must be accountable to those cratic deficit”, although this term seems to citizens and it also imposes a requirement be more commonly used in the EU context. of equality among citizens – all citizens are As we shall understand it here, the phrase to have an equal say, at important stages or “democratic deficit” refers to the international levels of group decision making – but it does (or, in the EU case, regional) version of a prob- not rule out the possibility that such officials lem that has preoccupied democratic theorists may also be accountable to non-citizens.11 At for some time: the problem of bureaucratic most the non-controversial definition distance. In the domestic case, the complaint implies that those exercising authority over is that officials of the modern administrative citizens of a particular state be accountable state make important decisions and in some equally to all of them and to whomever else cases even make laws, yet are not subject to they are accountable, but it does not require electoral accountability. In the supranational accountability only to those citizens. context, the charge is that chains of author- It is worth noting that even when the ity stretching from democratic publics to Exclusive Accountability Argument is re- officials of international or EU institutions are stricted to the US case, it is implausible. The too attenuated to warrant the title of demo- US Constitution authorizes the president, with cratic accountability.12 concurrence of two-thirds of the Senate, to It is crucial to distinguish between the enter into and ratify treaties. In some cases, charge that robust international legal institu- treaties set up mechanisms for dispute resolutions lack exclusive accountability to par- tion through arbitration by third parties who ticular domestic publics and the charge that are not exclusively accountable to the citizens bureaucratic distance undercuts adequate of the contending states (if they can be said accountability, because adequate account- to be accountable to them at all). The clause ability need not be exclusive. If it were of the Constitution that authorizes treaty the case – contrary to what we have argued making includes no suggestion that such already – that democracy requires exclusive treaties are prohibited. Moreover, not only the accountability, then fidelity to RIL and to United States, but also other states that are democracy would be incompatible in prin- commonly regarded as democratic, routinely ciple, because legitimate international insti- enter into such treaties. So if exclusive tutions could not be accountable solely to accountability is a necessary condition for the people of any particular country.13 The democracy, then there are few, if any, bureaucratic distance problem, in contrast, is democracies in the world. A more reasonable remediable, so long as adequate accountabil- conclusion is that exclusive accountability is ity mechanisms can be developed. In that sense, not a requirement of democracy. This con- the democratic deficit argument is not cap- clusion is reinforced by the realization that able of showing that there is any inherent neither the idea of equal electoral account- incompatibility between RIL and constitu- ability nor other notions usually associated with tional democracy. democracy (such as the idea that government Moreover, incompatibilists who wield the has no rights on its own account, but instead democratic deficit argument must tread a only has the authority that is conferred on it razor-thin line: They must make the case that by those whose interests it is supposed to serve) the problem of bureaucratic distance is so require exclusive accountability. severe and intractable in the international 256 9780415418768_4_017.qxd 26/11/2008 02:39PM Page 257

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case that democratic states should deny the would be more accurate to say that in these authority of RIL, but, at the same time, they circumstances there is a tension between must provide reasons to believe that the the two commitments. This language better same problem in the domestic case is not conveys the possibility that trade-offs so severe as to undermine domestic legal between the two commitments may be in authority. That is a tough order to fill, order. The possibility of trade-off should not because it requires either (1) a principled be dismissed; after all, as we have already identification of a point along the continuum argued, there are a number of reasons why of bureaucratic distance that undercuts democracies should find the availability of authority, along with convincing reasons for institutions for creating RIL attractive. concluding that domestic bureaucratic distance More specifically, if such institutions are to falls below it and international bureaucratic develop greater popular accountability, it distance above it or (2) good evidence for may be necessary, especially for more pow- thinking that the problem of bureaucratic erful and influential democratic states, to distance can be adequately ameliorated in participate actively in them and to that the domestic case but not in the international extent acknowledge their authority pro tanto case.14 – that is, provisionally on the expectation that At any rate, the key point is that the demo- they can be improved and conditionally on cratic deficit or bureaucratic distance argument their actually showing promise of improve- is incapable of showing that domestic ment. Temporary toleration of an international democracy and RIL are incompatible in institutional democracy deficit may be a principle. Just as important, those who reasonable price to pay in order to reap the advance this argument fail to consider the pos- benefits of RIL while working for better sibility that its shelf life may be rather short; accountability. they do not even entertain the possibility that better accountability mechanisms for inter- The unacceptable loss of self- national agencies and officials can be and ought government argument to be developed.15 None of this is to deny that the problem The self-governance of a democratic people of bureaucratic distance is serious at the can be diminished in several ways. One way supranational level or that it should be espe- we have just discussed: To the extent that cially troubling to those who endorse officials, whether domestic or international, democracy at the domestic level. To a large govern citizens without being adequately extent the case for democracy at the domes- accountable to them, there is a loss of tic level rests on the idea that democratic self-government, because self-government institutions provide popular accountability, requires popular accountability. A demo- where this includes accountability of officials cratic people also experiences a diminution to all those they govern. So those who of self-government if important decisions endorse democracy at the domestic level previously made by officials exclusively should be very disturbed when governing accountable to them are now made by officials, domestic or supranational, are not officials who are accountable to other con- adequately accountable to those they govern. stituencies as well, as occurs when inter- Rather than saying that the commitment national institutions exert robust legal to domestic democracy and the commitment authority. When this second sort of diminu- to RIL law are presently incompatible due tion of self-government occurs, the problem to the relatively underdeveloped popular is not that something has transpired that is accountability of those international legal inherently incompatible with democracy at the institutions that assert robust authority, it domestic level; as we have seen, democracy 257 9780415418768_4_017.qxd 26/11/2008 02:39PM Page 258

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is not incompatible with a people being sub- some meaningful sense self-governing?16 The ject to authority that is not exclusively answer to that question depends upon an accountable with them. Rather, the worry is account of what makes political self-deter- that if increasingly more authority is transferred mination valuable. Political self-determination to officials who are not exclusively account- is valuable for a number of reasons, which need able to a particular people, then a point will not be rehearsed here. Because it is valuable eventually be reached at which it is no for a number of different reasons, reasons that longer meaningful to say that the polity is self- will have greater weight for members of var- governing. To put the same point in a ious groups, and because self-determination slightly different way, democracy does not is not an all or nothing matter, but rather require that all authority over a democratic comes in many forms and degrees, there is no people be exclusively accountable to them, single or easy answer to the question: How but it does require a significant domain of much self-determination is enough for a authority that is characterized by exclusive constitutional democracy? accountability to them. If a state transferred An intuitively plausible response to this virtually all important governing functions to quandary is to appeal to the value of self- some other political entity, so that its people determination itself and simply say that the had no exclusive control over any area of citizens of democracies should decide how policy, we would no longer regard it as self- much self-governance they will relinquish governing, or, hence, as a democracy. Clearly to global governance institutions.17 But even those who value democracy at the state level if we grant that the decision to relinquish have a right to be concerned about the some dimensions of self-determination to a extent of the transfer of authority to supra- robust international legal order ought itself national institutions, even though they can and to be viewed as a matter of rightful self- should acknowledge that it is not the case that determination, we still need to know how a people can only be subject to the author- this choice is to be made. For even if it is ity of officials that are exclusively account- permissible or even obligatory to relinquish able to them. a great deal of self-governance to the inter- The loss of self-government worry is not national legal order – for example, to promote to be confused with the democratic deficit peace or to achieve better protection of argument noted earlier. Even if all interna- human rights or to safeguard the environment tional institutions exhibited better popular – it would not follow that just any way of accountability than any existing democratic transferring political power is appropriate. states, the question would still remain: Is their More precisely, we need to ask whether the exercise of power compatible with meaning- same values that undergird the commitment ful domestic self-government? International to democracy also place constraints on how institutions with a great deal of popular powers of self-government can be trans- accountability – accountability to the citizens ferred to international institutions. of all states – could be described as providing global self-government, but depending on The lack of democratic authorization the scope of its powers this might come at argument the price of an unacceptable loss of self- government at the level of individual states. It should not be assumed that the ways in The critical issue, then, is this: At what point which RIL is actually being created satisfy rea- does the diminution of self-determination sonable constraints on the relinquishing of self- in a state become so great as to be incompat- determination. Consider an analogy. There ible with it warranting the title of a demo- is much to be said for the idea that when exist- cracy, a territory whose inhabitants are in ing political units come together to form a 258 9780415418768_4_017.qxd 26/11/2008 02:39PM Page 259

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federal state, as occurred in what became the weight to the popular will than ordinary leg- US, or when a centralized state devolves into islative processes and which are preceded a federal state, these are such significant con- by special public deliberations designed to stitutional changes as to require some form reflect the fact that issues of significance for of democratic authorization that is more the fundamental character of governance are robust than the ordinary legislative process. at stake. Here the mechanisms for accepting In brief, for such major changes in the RIL that entails a significant diminution of character of a polity, public constitutional self-government would be a new constitutional deliberation and popular choice seem to be convention, constitutional amendment, or per- required.18 Similarly, if the development of haps some form of referendum in which all RIL continues to reduce the domain of self- citizens could vote. The second alternative is determination for a democracy, the point may some form of special supermajority legislation: be reached at which proper appreciation of recognition of the supremacy of international the value of self-determination requires pub- law that qualifies as constitutional change lic deliberation and popular choice, or at least would require approval from the national leg- some sort of authorization that is more islature by considerably more than a bare directly democratic than an ordinary legislat- majority. Variants of the first and second ive act or the ratification of a treaty. processes have in fact been utilized by states The argument thus far can now be joining the EU or acceding to its evolving summarized. When a democracy transfers structures of authority. The third alternative authority to supranational institutions, it is a process of accretion in which no public thereby relinquishes the right to exclusive constitutional deliberation or popular choice accountability for its exercise and this consti- occurs and no special legislative approval is tutes a diminution of self-determination. But required – a process that might be charac- there is no inherent incompatibility here terized rather uncharitably as a democracy’s between democracy and RIL, because it is not slow death by a thousand cuts. The accretion part of the idea of democracy that the scope can occur through a combination of: of self-determination must be unlimited. However, if a democracy either (a) transfers executive agreements so much authority to supranational institutions automatic incorporation of ratified that it can no longer be said to be self- treaties into the law of the land governing or (b) relinquishes significant (so-called self-execution) dimensions of its self-determination without recognition of international law as doing so by a process of authorization that is federal common law consonant with the core ideas of democracy, judicial borrowing from international then its citizens thereby compromise their law commitment to their democracy. the development of more robust The idea that some processes for relin- global governance institutions that quishing self-government may be compatible increasingly create policies through with democratic principles while others may their own bureaucracies without the not be warrants elaboration. Consider three “specific” consent of states. quite different types of process by which a democracy might subject itself to international The process of accretion is deeply problem- legal regimes that significantly limit the atic from the standpoint of democracy: there scope of its self-government. The first, to are significant losses of self-determination, but which we have already alluded, is through without deliberation by the people as to public constitutional deliberation and popu- whether to incur them and there is no special lar choice, by processes that give more process of authorization that reflects the fact 259 9780415418768_4_017.qxd 26/11/2008 02:39PM Page 260

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that changes of this sort require robust pop- as a principle of jurisdiction. Where the allo- ular support. There is not even any special cation of authority is between a state and national legislative act to signal that this is not a supranational entity, the idea is that the just law making or treaty making as usual. default allocation is to the state and that pro- The processes by which European Union ponents of an allocation to a supranational governance has developed have included, entity bear a burden of justification. Matthias at several critical junctures, something Kumm notes that subsidiarity is a central prin- approaching the first model for accepting ciple of European constitutionalism, and he international law that is sufficiently robust characterizes the process of reasoning that to result in significant diminutions of self- subsidiarity entails as follows: government – the public constitutional deliberation and popular choice model. But [S]ubsidiarity analysis . . . requires a two-step in the case of most states outside Europe, test. First reasons relating to the existence including the US, the process of accepting RIL of a collective action problem have to be identified. Second the weight of these has been one of accretion: public constitutional reasons has to be assessed in light of deliberation and popular choice have been countervailing concerns in the specific conspicuously absent. To accept the process circumstances. of accretion, when other, more democratic (Kumm 2004: 921) processes for acknowledging the authority of RIL are available, is to indulge in an un- The reference to collective action problems justified departure from the commitment to suggests what might be called the narrow domestic democracy. understanding of subsidiarity, namely, that it is a principle of efficiency. Collective action problems arise when two or more agents The principle of subsidiarity and who prefer some outcome, O, that can only its limitations be attained by their joint action are barred from achieving it because the structure of incen- The principle of subsidiarity has played a tives is such that if each acts so as to optimize, prominent role in the EU debate about the the result is suboptimal from the standpoint compatibility of constitutional democracy of achieving O. On the narrow understand- with RIL, but is largely absent in the ing, subsidiarity is a principle of efficiency American debate. Our aim here is not to do because following the process it prescribes justice to the sophisticated literature on sub- simply allows agents to better achieve out- sidiarity in the context of EU politics and legal comes they (all) prefer. As such, subsidiarity development, but rather to try to determine has nothing to say about cases in which groups whether an appeal to subsidiarity can answer with different preferences must decide how the question posed in the previous subsection: to allocate authority. It cannot provide guid- At what point does the relinquishment of ance, for example, when the people of a state authority by a state to international legal re- value self-governance in some area of life so gimes violate the commitment to domestic highly that they are willing to sacrifice some democracy? efficiency to preserve it, while others prefer The basic idea of subsidiarity is that polit- more robust international authority. ical authority should be exercised at the Kumm makes it clear that he does not “local” level except when it is “better” exer- construe subsidiarity in this narrow way as a cised at a higher level. Subsidiarity is perhaps principle of efficiency. He says that it is com- more accurately described as a mode of patible with there being exceptions to the practical reasoning for decisions about the rule that authority should be allocated to the allocation of political authority rather than higher level political entity only if doing 260 9780415418768_4_017.qxd 26/11/2008 02:39PM Page 261

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so is necessary for solving collective action The results of this section can now be problems. This suggests that, on a broad summarized. There is no in principle incom- understanding of the principle, subsidiarity patibility between fidelity to robust interna- gives considerable but not exclusive weight tional law and fidelity to democracy at the to efficiency but also permits other values to domestic level. Those who have suggested that be taken into account. The only other value there is have apparently done so on the basis Kumm mentions is “the protection of of a controversial and problematic, but unar- minimal standards of human rights” (2004: ticulated conception of democracy as either 921). However, to limit departures from an requiring that all those who exercise author- exclusive concern with efficiency in this ity over the citizens of a democracy must be way seems arbitrary. Why consider only the accountable exclusively to them or as per- protection of minimal standards of human mitting no diminution of self-government. rights (given that human rights typically are Nonetheless, although fidelity to RIL and themselves thought of as minimal moral domestic democracy are in principle com- requirements) and not other values as well, patible, both the bureaucratic distance that such as self-determination? characterizes international institutions and Those who would invoke subsidiarity to the undemocratic processes by which some determine what sorts of relinquishments of states have relinquished self-government to self-determination are compatible with a com- these institutions raise serious concerns for mitment to domestic democracy confront a those committed to democracy at the dilemma. They can either construe subsidiar- domestic level. Finally, the principle of ity narrowly as a principle of efficiency, in subsidiarity sheds limited light on either the which case it is silent on the question at issue; question of how much authority a demo- or they can construe it broadly, so as to accom- cratic people ought to be willing to cede to modate values other than efficiency, in which international legal regimes and no light case they must either provide a principled whatsoever on the question of how they account of why only certain other values (such should authorize whatever transfer of author- as the protection of human rights, but not ity they are willing to make. self-determination) are relevant or acknowledge that the “principle” of subsidiarity is the unhelpful truism that we are to allocate Are fidelity to constitutionalism authority to the local entity, except when not and fidelity to robust doing so is better all things considered. international law compatible? Our conclusion is not that subsidiarity is useless as a constitutional principle, but The second prong of our investigation of rather that it provides little or no guidance whether RIL and constitutional democracy for answering the question “How much are compatible focuses on the constitution- authority should those committed to their own alism side of the issue, as the first focused on democracy be willing to give up for the sake the democracy side. In the first section, we of acknowledging the authority of robust began with a relatively uncontroversial and international law?”19 Even more clearly, the moderately realistic conception of democracy; notion of subsidiarity sheds no light on the here we do the same for constitutionalism. other major concern about the impact of RIL According to what may be the leanest on self-government at the level of states; it is plausible definition, constitutionalism is the silent on the question “Which processes for view that if government is to be legitimate relinquishing powers of self-government to its powers must be subject to entrenched legal supranational entities are most consonant limitations. Entrenched legal limitations with the commitment to democracy?” need not be irrevocable – they can be 261 9780415418768_4_017.qxd 26/11/2008 02:39PM Page 262

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removed by constitutional amendment, for ognize domains of supremacy for the distinct example. But removing them must be more polities, in other words, that each has the “final difficult than changing ordinary laws and the say” on some matters (Karmis and Norman validity of ordinary laws depends on their con- 2005; Waluchow 2007). (Without this added sistency with existing limitations. According condition, it would not be possible to dis- to this view, the constitution of a polity is a tinguish merely decentralized states from public (although not necessarily written) federations.) specification of the entrenched legal limitations on government power. A somewhat thicker, but still relatively Constitutionalism and the uncontroversial definition includes every- “supremacy” of constitutional thing in the narrowest definition but adds law the idea that legitimate government requires a public specification of the basic At the outset of this chapter we noted that structure of government, a specification that states’ constitutions typically claim supre- makes clear the entrenched legal limitations macy. Some would argue that the concept of on government’s power, while taking into constitutionalism itself grounds this claim, that account that government requires a plural- constitutional law, by definition, is supreme. ity of distinct institutions. This additional There are, however, two quite different element is most clearly expressed in written ways in which to understand the claim that constitutions that distinguish legislative, constitutionalism includes the idea that executive, and judicial “branches of govern- when governance is legitimate the constitu- ment” or “powers” and assign them each tion is supreme, that is, that it has the “final distinctive functions. say” on legality. On the first construal, the According to what might be called the lib- supremacy of constitutional law is internal eral conception of constitutionalism, whatever only: The constitution is the supreme legal else the specification of the structure of gov- authority within the polity of which it is ernment encompasses, it must include the the constitution. On the second construal, idea that the judiciary is “independent” of the the supremacy of constitutional law is executive. On most accounts, liberal consti- unbounded: The constitution is supreme not tutionalism adds to this the idea that among only with respect to other sources of law the entrenched limitations on government within the polity, but also with respect to all power, individual civil and political rights are other sources of law. prominent and that one function of the The core idea of constitutionalism, the “independence” of the judiciary is to help thesis that legitimate government requires uphold these rights. However, the liberal con- entrenched limitations on government stitutionalist conception of an independent power, does not itself imply unbounded judiciary does not itself include a requirement constitutional supremacy; at most it implies of American-style robust judicial review of that it is supreme with respect to the ordin- legislation. ary law of the polity. In fact, none of the In the case of federal states, constitution- definitions of constitutionalism listed above alism also includes the idea that the public, includes the idea of unbounded constitutional entrenched specification of the structure of supremacy. Yet at least the richer variants seem government and the limits on government to capture what is essential to constitutional- power includes an allocation of powers ism. So the assertion that constitutionalism among two or more distinct polities. is incompatible with a state’s constitution Standard definitions of federalism include recognizing the supremacy of supranational the idea that this allocation of power must rec- law is dubious at best. 262 9780415418768_4_017.qxd 26/11/2008 02:39PM Page 263

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There is an inconsistency between consti- includes unbounded constitutional supre- tutionalism and the supremacy of supranational macy, rather than merely internal supremacy law over domestic constitutional law, then, of the constitution, there is no inconsistency only if we add to the idea that legitimate gov- between the commitment to constitutional- ernment requires entrenched legal limita- ism and acknowledging the supremacy of tions on its power the further requirement that supranational law over a state’s constitutional the entrenched legal limitations must not law, if two conditions are satisfied: (1) the con- be subject to the supremacy of law from any stitution provides for the supremacy of the other source. It may be the case that consti- RIL in question and (2) the constitution also tutionalism is often implicitly understood as provides for revoking that supremacy. We including this stronger notion – that con- now want to argue that in spite of this in prin- stitutionalism is thought to include the idea ciple compatibility, in practice the acknow- that the constitution of a polity is supreme in ledgment of the supremacy of RIL can be the strong, unbounded sense. But it bears highly problematic from the standpoint of the emphasizing that this stronger notion adds commitment to domestic constitutionalism, something to standard definitions of consti- under certain circumstances. tutionalism that appear to be quite unexceptionable without it. One final point about constitutional Potential negative impact of RIL supremacy is worth noting. Even on the on constitutional structures22 unbounded construal, there is an important sense in which constitutional supremacy Even if the supremacy of a certain area of allows for the subordination of the constitu- RIL, such as international human rights law, tion to supranational law. A constitution is explicitly acknowledged in a state’s con- can contain an explicit recognition of the stitution and that constitution provides for supremacy of international law over its other revoking the acknowledgement of supre- provisions, as is the case with Austria and macy, there is still the worry that RIL may the Netherlands.20 Of course, so long as this have a negative impact on domestic consti- constitutional provision is itself subject to tutional structures. The potential damage is revocation by processes of constitutional of two sorts: (1) the undermining of the amendment, there is a sense in which the con- constitutional allocation of power among stitution remains supreme with respect to the branches of the government and (2) the supranational law. Nonetheless, this ultimate undermining of federalism, by encroaching on supremacy of the constitution is compatible, the authority that the constitution accords to from the standpoint of constitutionalism, federal units ((US) states, cantons, provinces, with an existing constitution recognizing the etc.). The general point is that constitutional supremacy of international law even with acknowledgement of the supremacy of respect to some of its most significant pro- supranational law, whether it is revocable visions, including its enunciation of civil and or not, does not itself guarantee practical political rights. Such acknowledgement compatibility. occurs when a state’s constitution provides that The first type of risk to constitutional in cases where international human rights structures can be illustrated briefly by refer- law contains a broader scope for a particular ence to the US case, but the problem, with right, that understanding trumps a narrower variations, applies much more broadly. RIL interpretation that has developed in domes- can become binding domestic law in the US tic constitutional law.21 chiefly in two ways: through the ratification So far we have argued that even on the of treaties and when international customary dubious assumption that constitutionalism law is regarded as federal common law. 263 9780415418768_4_017.qxd 26/11/2008 02:39PM Page 264

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Some US constitutional scholars charge laws. The charge here is that the acceptance that in either case the incorporation of RIL of RIL changes the constitutional structure of into domestic law diminishes the rightful the federation by weakening self-govern- authority of the legislative branch.23 ment in the federal units. The same sort According to the US Constitution, inter- of change could be effected by according national law created through treaties auto- customary international human rights the matically becomes the “law of the land”: status of federal common law. For example, When the US ratifies a treaty, its provisions acknowledging the authority of customary take precedence over both the law of the states international human rights law could result (federal units) and prior federal law with which in a diminution of federal units’ control over it is inconsistent, without the requirement the nature of punishments under their own of federal legislation (US Const. Art. VI). criminal laws or could overturn provisions of The executive’s power to make treaties is marriage law, even though the federal con- not unlimited of course, because ratification stitution allocates the power to make laws in requires Senate approval; but the latter is a these areas to federal subunits. much weaker form of legislative control The more general point is that for states than in the ordinary creation of federal law. whose constitutions were drafted prior to Moreover, the US Constitutional provision the era of RIL and which have not been care- that makes ratified treaties federal law fully modified to accommodate this devel- without federal legislation was drafted in a opment, the possibility that domestic legal world in which international treaties did not acknowledgement of the authority of RIL may include RIL – law that extends to matters damage the state’s constitutional structures can- previously thought to lie at the core of the not be dismissed. The introduction of new protected sphere of state sovereignty, as is the legal norms from the outside – norms that case with modern human rights law. regulate matters previously assigned by the Nevertheless, given that the US Con- constitution to various branches and levels of stitution unconditionally declares the supre- government or that allocate power between macy of treaty law over states’ laws and the federal government and federal subunits inconsistent prior federal law, and given the – may well be at odds with existing con- unqualified nature of its provisions for the stitutional design. To assume that they will creation and ratification of treaties, it is be harmonious would be unduly optimistic. implausible to argue that RIL created by treaty A constitutional provision acknowledging is contrary to the US Constitution.24 It the supremacy of RIL does not guarantee might still be the case, however, that the accep- compatibility. tance of RIL through treaty ratification However, when the acceptance of RIL does effects a reallocation of power away from the impair existing constitutional structures, the legislative branch that is suboptimal from the proper conclusion to draw is not that consti- standpoint of constitutional design and per- tutionalism is incompatible with RIL per se, haps contrary to the intentions of the framers but rather that the acceptance of the par- of the constitution as well. ticular RIL in question is incompatible with The second risk that RIL can pose to the optimal functioning of those particular domestic constitutional structures applies to constitutional arrangements. Showing that cases of federal states. It can be argued that this or that existing constitutional structure is treaty-created RIL, at least in the area of impacted negatively by the acceptance of some human rights, reallocates power from the type of RIL is a far cry from establishing that state legislatures to the federal executive and constitutionalism and RIL are incompatible, the Senate, when human rights treaties are because there is a plurality of forms of con- ratified and take precedence over the states’ stitutional democracy. 264 9780415418768_4_017.qxd 26/11/2008 02:39PM Page 265

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Further, constitutional structures rarely if damental importance.” Thus, even a manifest ever work either optimally or not at all; instead, conflict with domestic law does not invalid- they do the jobs they were designed to do ate international treaty obligations, unless it amounts to the violation of a domestic law that with greater or lesser effectiveness. When is of fundamental importance. According to the acceptance of RIL does have a negative the constitutionalist tradition, if constitu- impact on the constitutional structures of a tional officers exceeded their competence or particular state, the impact may be of greater authority in concluding a treaty, the treaty is or lesser seriousness. In cases where the impact deemed to be invalid. The internationalist tradition, however, maintains that while treaty is limited, accepting some detriment to the obligations may be invalid within a state if functioning of existing constitutional arrange- they conflict with domestic law, they remain ments may be a reasonable trade-off, if this unimpaired at the international level insofar as is the only way to secure the important a treaty claims to supersede state law. benefits that RIL can bring. For example, some 4 For example, one of the central dogmas of US constitutional jurisprudence is that the Con- loss of legislative authority on the part of the stitution is the supreme law of the land, not subunits of a state might be a reasonable price to be superseded by any other law. See Reid to pay, under certain circumstances, if this vs. Covert, 354 US 1 (1957) (holding that “no is necessary for achieving better protection agreement with a foreign nation can confer of basic human rights. Constitutionalism power on the Congress, or on any other branch of Government, which is free from the restraints may require that where acknowledging the of the Constitution”). Similarly, the German authority of RIL disrupts constitutional constitution is the paramount law of the land, structures, either the constitution must be claiming priority over any other government changed or the authority of RIL must be act. Emerging from the fall of the totalitarian denied, but it cannot tell us which the Nazi regime, German constitutional supremacy was designed as a safeguard against dictatorship proper course of action is. The answer to that and human rights abuse (Limbach 2001). question depends upon the resolution of 5 We develop reasons for acknowledging the contested issues in political philosophy. authority of RIL in more detail elsewhere (see Buchanan and Powell 2008). In the present paper, we focus more on examining the ques- Notes tion of just which principles of constitutionalism or democracy are supposed by some to 1 Obviously, the word “state” can refer both be incompatible with states acknowledging the to countries (e.g. Spain, Thailand, the UK) supremacy of RIL. and to federal subunits (e.g. California, 6 See Keohane, et al. (unpublished paper). Maryland, etc., in the case of the United States, These authors cover the “self-regarding” rea- and Chiapas, Chihuaha, etc., in the case of sons, but not the cosmopolitan ones. Mexico). No differentiation is made in 7 For instance, federal election law in the US spelling here, however (i.e. State or state). prohibits a foreign national, which includes 2 By “domestic law” we mean the law of par- foreign businesses and governments, from ticular countries. The term “national” law is making election campaign contributions to any unfortunate because it helps perpetuate the myth candidate (federal or state) for public office – of the nation state, that is, the false belief that and it prohibits public officials from accepting all countries are mononational, when in fact the same. most include two or more nationalities. 8 Kristen Hessler (2005) has argued that demo- 3 For example, Article 46(1) of the Vienna cracies have epistemic virtues – in particular, Convention on the Law of Treaties (the resources for public deliberation – that create “treaty of treaties”), provides that: “A state may a presumption that they should have the not invoke the fact that its consent to be bound authority to interpret human rights norms in by a treaty has been expressed in violation of their domestic application. This is compatible a provision of its internal law regarding com- with the claim that there are circumstances in petence to conclude treaties as invalidating which the authority of international human its consent unless that violation was manifest rights law should supercede the authority of and concerned a rule of its internal law of fun- the state.

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9 This definition is based on that offered by sive accountability, a condition which, as we Thomas Christiano (2006). have already argued, has been routinely vio- 10 See also Ku (2000) (following Yoo in arguing lated by the US and virtually all other states in that insofar as treaties establish independ- the practice of treaty making and which in no ent verification regimes (such as chemical way contradicts the core ideas of democracy. weapons inspections), they violate basic con- 13 See for example, John Yoo’s (2000: 1715) stitutional principles of accountability in the apparent indignation at the fact that officials of enforcement of federal law). international institutions “have no obligation 11 Presumably, the equality element of this basic to pursue American policy, they do not take idea of democracy as equal electoral account- an oath to uphold the Constitution, nor can ability would at the very least require that if any American official hold them responsible for some officials exercising political power over their deeds”. the citizens of a democracy are accountable 14 For an attempt to articulate a conception of not only to them but also to others, then the accountability suitable for international legal citizens must have at least an equal say in the regimes that assert robust legal authority, see processes of accountability, that is, that their Buchanan and Keohane (2006). ability to control the conduct of the officials 15 A distinct objection to acknowledging the must not be inferior to that exercised by the authority of RIL relates to the so-called “sover- others to whom the officials are accountable. eign source” requirement, and is rooted in the If this is so, the conclusion to draw is not that Madisonian idea that the Constitution is a doc- RIL is incompatible with democracy, but that ument of power granted by liberty, rather than those who make, apply, and execute interna- a doctrine of liberty granted by power. This tional law ought to be equally accountable to was the essence of the US Supreme Court’s the citizens of all states. reasoning in the seminal case of Erie R.R. vs. 12 Thus American constitutional scholar Curtis Tompkins (1938), which famously held that Bradley (2003: 1558) complains that: “By trans- federal judge-made law is illegitimate insofar ferring legal authority from US actors to inter- as it is not grounded in a sovereign source. The national actors – actors that are physically and sovereign source argument assumes a similar culturally more distant from, and not directly form in the context of the subordination responsible to, the US electorate – these del- of domestic to international law. The new egations [of authority under RIL] may entail sovereigntists assume that international law must a dilution of domestic political accountability.” be grounded in sovereignty, since all law This concern may be heightened by a lack of depends on sovereignty for its legitimacy. See transparency in supranational decision-making. e.g. Rabkin (1998, 2005). They perceive a lack Notice that Bradley does not assert that those of sovereignty vis-à-vis the authority of RIL exercising authority over Americans must in numerous contexts, such as judicial decision be exclusively accountable to them, but only making that involves appeals to international expresses a concern that those officials may not human rights norms, self-executing treaties that be sufficiently accountable to them. However, govern traditionally domestic affairs, and the in the passage by John Yoo (2000) quoted ear- incorporation of customary international law lier (see note 10 and accompanying text), into federal law sans legislative mediation. there is a slip from the idea that international The sovereign source problem takes on an officials are not sufficiently accountable to added dimension when the people of a demo- American citizens to the idea that they must cratic state are subjected to laws created not be exclusively accountable to them, when Yoo by them or their representatives, but by agent remarks that such officials “have no obligation delegatees conferred with legislative, executive, to pursue American policy”. If international or judicial authority. This is the problem of officials are accountable to the citizens of other sub-delegation, which entails that the powers states as well as to those of the US, then of course delegated by “the people” to a particular they cannot have an obligation to pursue Amer- component of government are then sub- ican policy as such. Yoo does not offer an argu- delegated to another government body with- ment to show why those who exercise out direct participation or authorization of authority over the citizens of a particular state the original sovereign source, severing the link must be accountable solely to them. If his between the exercise of power and the con- remarks are supposed to show that RIL is stituency which authorized its exercise. incompatible with constitutional democracy, The new sovereigntist appeal to the sover- they simply beg the question by assuming exclu- eign source argument is ambiguous on many

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fronts – it is unclear about the nature and con- son and citizen are recognized and guaranteed ditions of sovereignty itself, and its relation to pursuant to the generally recognized principles the exclusive accountability and democratic and norms of international law and in accor- deficit arguments addressed earlier. We will dance with this Constitution” and Article consider the sovereign source argument in more 46(3) provides the right to appeal to interstate detail in the third section, where we take up bodies for the protection of human rights if the question of whether RIL is compatible with all domestic means have been exhausted. constitutionalism and (more specifically) the idea (See Vereshchet 1996 for a comparative con- that all sources of political authority must be stitutional review.) identified in the domestic constitution. 21 For example, Article 11 of the Slovak 16 The remainder of this subsection draws on Constitution (1992) provides that interna- Section II of Buchanan and Powell (forth- tional instruments on human rights and free- coming). doms ratified by the Slovak Republic and 17 On reflection, this intuition may not stand scru- promulgated under statutory requirements tiny, because, at least in principle, it seems that “shall take precedence over national law provided the citizens of a democracy could mistakenly that the international treaties and agreements cede authority beyond the point at which it guarantee greater constitutional rights and could be said that they are self-governing. freedoms”. Similar provisions are contained 18 In order to ratify treaties of major importance, in the Czech Constitution (1992, Article 10) such as those which establish or pave the way and the Moldova Constitution (1994, Article for accession to robust supranational organ- 4(2)). See ibid. izations, many nations require special major- 22 Some new sovereigntists also worry about ity legislation (e.g. Austria, Croatia, Finland, domestic court judges “borrowing” from Greece, inter alia) or constitutional revision international law, especially human rights law. (e.g. France), while others hold referendum The concerns here are of two sorts. First, there (e.g. Denmark, Sweden and Switzerland) is the worry that judicial borrowing will be (Vereshchet 1996). unprincipled “cherry picking”. We regard 19 It is important to note that Kumm does not this as a worry about the rule of law, not about think that subsidiarity is to be employed in iso- the compatibility of RIL with constitutional- lation from other considerations. He thinks that ism or democracy, so we do not discuss it here, the legitimacy of international legal regimes though we do so at length in Buchanan and depends on three other principles: the pre- Powell (forthcoming). Second, there is the claim sumptive bindingness of international law, a that “borrowing” from international law may procedural principle of adequate participation disrupt the normative coherence of domestic and accountability and a substantive principle law, because international law may express according to which outcomes must not vio- values that are alien to the domestic society. late fundamental rights and must be “reason- We address this issue in the same article. able”. Although space precludes pursuing this 23 The tripartite separation of powers is allegedly matter here, we believe that even the combi- vitiated by the federal incorporation of internation of these principles does not provide an national law in several ways. The judicial answer to the question of how much author- branch is said to exceed its constitutional ity a democratic people ought to cede to supra- mandates by incorporating customary interna- national institutions or the question of which tional law into federal common law and by modes of ceding authority are consonant with invoking foreign precedent as persuasive democratic values. authority in US constitutional jurisprudence. 20 For instance, under Article 91(3) of the The executive is claimed to exceed its con- Netherlands’ Constitution adopted in 1983, stitutionally enumerated powers by entering treaties that conflict with the Constitution may into “self-executing” treaties which regulate be approved by the chambers of parliament by subject matter reserved to the Congress and or a 2/3 vote; as per Article 94, statutes that are to the several states. Finally, the entire federal inconsistent with treaties are not applicable. government is held to exceed its legitimate Similarly, Articles 9, 44, and 50 of the authority by incorporating into US law inter- Austrian Constitution allow international law national norms which regulate content con- to modify constitutional law by 2/3 majority stitutionally reserved for state regulation (see vote in the house. Likewise, Article 17 of the Bradley and Goldsmith 1997). Russian Constitution declares that: “[I]n the 24 This case is persuasively made by David M. Russian Federation rights and freedoms of per- Golove (2000, 2002).

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18 International crimes

William A. Schabas

The conception of international crimes, as mala in That is to say, they must now be included se or mala prohibita, is considered against the in national justice systems as a result of inter- background of the early efforts at codification. The national legal obligation. In a line of early distinction between crimes that have been inter- cases, international human rights law dealt nationalized in order to facilitate their repression, with the obligation to legislate and prosecute such as piracy, and the more recent categories such where state complicity in such crimes was sus- as crimes against humanity and genocide, whose pected.1 More recently, it has extended this defining characteristics include the fact they are “crimes logic to cover “ordinary” crimes involving of state” is considered. Drafting of the International individual delinquents, without any hint of Law Commission Code of Crimes against the Peace state involvement.2 To the extent that pros- and Security of Mankind is considered, as well as ecution of such crimes is dictated not only by judicial contributions to the evolving definitions. The the consistent practice of all states but also by consequences of international criminalization are rulings of international human rights bodies examined, such as the possibility of exercise of applying universal norms, it might be said that universal jurisdiction, the impact upon immunities murder, rape and similar crimes against the recognized at customary international law and the person are “international crimes.” Indeed, obligation to prosecute or extradite. there is evidence of attempts by academics in the past to prepare an international or uni- Many crimes prosecuted by national justice versal codification of criminal law on this systems, such as murder and rape, are universal philosophical basis.3 Yet murder, rape and sim- in nature. Although formulated with slight ilar serious crimes against the purpose do not differences, they appear in all penal codes. generally figure in enumerations of “interna- These are crimes that are mala in se. Their tional crimes,” neither do they mandate the presence in criminal law is not the result of application of various principles applicable to a policy choice by legislators, but rather the international crimes, such as the permissibil- consequence of profoundly important values ity of universal jurisdiction, the prohibition that are deeply rooted in all human societies. of statutory limitations, and the restriction on Moreover, international human rights law sovereign immunities. now imposes obligations with respect to Many crimes are recognized as “interna- investigation and prosecution of such crimes. tional” because they are declared to be criminal 268 9780415418768_4_018.qxd 26/11/2008 02:39PM Page 269

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in an international treaty. Cherif Bassiouni ence of these new crimes of Turkey against (2004: 46) has identified 28 categories of humanity and civilization, the allied Gov- crime set out in 281 international conventions ernments publicly inform the Sublime Porte concluded between 1815 and 1999. Crimes that they will hold personally responsible for appearing on the list include piracy, unlawful the said crimes all members of the Ottoman use of the mail, counterfeiting, destruction Government as well as those of its agents of submarine cables, and bribery of foreign who are found to be involved in such mas- public officials. Their designation as interna- sacres.”5 Comprehensive attempts at codi- tional crimes, and the obligations that result fication of these “new crimes” had to wait from this, are set out in treaties that apply, in another 30 years, for the Charter of the Inter- principle, to the parties only. national Military Tribunal,6 the Convention on In a certain sense, such crimes have less of the Prevention and Punishment of the Crime of a claim to international status than do mur- Genocide7 and the Geneva Conventions.8 The der and rape. They often do not threaten “new crimes” differ from the earlier genera- human life and dignity, they do not offend tion of international crimes in that they are fundamental human values, and they attract generally concerned with “crimes of state,” penalties that would not necessarily be at the that is, serious violations of human rights com- highest end of the scale. Their prosecution is mitted by a state against its own civilian popu- not required so as to conform with interna- lation, or that of a territory that it occupies. tional human rights obligations. As a general The difference was also recognized, albeit rule, these crimes are outlawed by interna- implicitly, in the original draft resolution on tional treaty essentially because they require genocide in the United Nations General international cooperation in order to ensure Assembly, proposed in 1946: “Whereas the repression. Often their commission is more punishment of the very serious crime of transnational than international in nature. In genocide when committed in time of peace some cases, such as piracy, they pose juris- lies within the exclusive territorial jurisdiction dictional problems because the crimes are com- of the judiciary of every State concerned, while mitted on the high seas and therefore escape crimes of a relatively lesser importance such the territory reach of any given states. This as piracy, trade in women, children, drugs, was explained by the Permanent Court of obscene publications are declared as interna- International Justice in SS Lotus: “As the scene tional crimes and have been made matters of of the pirate’s operations is the high seas, which international concern.”9 These are crimes is not the right or duty of any nation to police, that are most definitely mala in se rather than he is denied the protection of the flag which mala prohibita. he may carry, and is treated as an outlaw, as Precise distinctions between these differ- the enemy of all mankind – hostis humani generis ent types of international crime are not – whom any nation may in the interest of all simple to establish. When destruction of sub- capture and punish.”4 These are crimes that marine cables and genocide are compared, the are most certainly mala prohibita, but not, as difference in nature seems evident enough. a general rule, mal in se. The former is a “transnational crime” that is Finally, there are international crimes mala prohibita whereas the latter is an offense that concern “atrocity.” These are of more mala in se that is in principle confined to recent vintage than the transnational crimes a single territory, but one where the state such as piracy and trafficking in persons. The is involved in perpetrating the acts and is first suggestions of their prosecution date to therefore unwilling to prosecute. When the time of the massacres of the Armenians crimes such as terrorism and trafficking in during the First World War, when Britain, persons are considered, however, it is not as France and Russia announced “[I]n the pres- easy to draw the line. 269 9780415418768_4_018.qxd 26/11/2008 02:39PM Page 270

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Crimes against the peace and between “crimes against the law of nations” security of mankind and “crimes against the peace and security of mankind.” Spiropoulos described the latter Since the period of initial codification of inter- concept as: national war crimes, crimes against humanity, crimes against peace and genocide, in the [A]cts which, if committed or tolerated by 1940s, there have been various attempts at a State, would constitute violations of explaining the nature of these “new crimes.” international law and involve international In 1947 the United Nations General responsibility. The main characteristic of Assembly charged the International Law the offences in question is their highly Commission with identifying and codifying political nature. They are offences which, on “offences against the peace and security of account of their specific character, normally would affect the international relations in a mankind.”10 The expression is attributed to way dangerous for the maintenance of peace.14 Francis Biddle, one of the judges at the International Military Tribunal, who had For this reason, Spiropoulos insisted that referred to them in this manner in a letter to “the draft code to be elaborated by the United States President Truman in the after- International Law Commission cannot have math of the Nuremberg trial. Biddle was as its purpose questions concerning conflicts attempting to characterize the subject matter of legislation and jurisdiction in international jurisdiction of the Nuremberg tribunal.11 In his 1950 report on the subject of an inter- criminal matters. Consequently, such topics national criminal jurisdiction submitted to as piracy (delicta juris gentium), suppression the International Law Commission, Special of traffic in dangerous drugs (opium), in Rapporteur Ricardo Alfaro spoke of “crimes women and children (white slave traffic), sup- which affect the community of States and pression of slavery, of counterfeiting currency, hence should be subject to an international protection of submarine cables, etc., do not jurisdiction.”12 Alfaro thought an international fall within the scope of the draft code with 15 The draft tribunal should exercise jurisdiction not only which we are concerned here.” codes prepared by the Commission in 195116 over crimes derived from the Nuremberg and 195417 confined themselves to enumer- proceedings and the crime of genocide, but ations of crimes that constituted, in practice, also over “certain offences which have a rather detailed development on the three always been known as ‘crimes against the law categories of offense that were prosecuted at of nations,’ such as piracy, slave trade, traffic Nuremberg. in women and children, traffic in narcotics, The Commission did not return to the draft currency counterfeiting, injury to submarine code until the early 1980s. In one of its early cables. To these might be added terrorism of discussions of the nature of crimes against the an international character, as defined by the peace and security of mankind, the issue was Convention of 1937 on the Prevention and presented as follows: Punishment of Terrorism.”13 But Alfaro was preparing the special part of a criminal court statute, not a codification Among the several possible criteria suggested of “offences against the peace and security of were the following: the inspiration of the criminal act (for example an act based on mankind,” and his approach was therefore racial, religious or political conviction); rather broad. The International Law Com- the status of the victim of the criminal act mission expert charged with launching work (for example, a State or a private indi- on the draft code of offences against the peace vidual); the nature of the law or interest and security of mankind, Special Rapporteur infringed (the interest of security appearing Jean Spiropoulos, insisted on a distinction more important than a purely material 270 9780415418768_4_018.qxd 26/11/2008 02:39PM Page 271

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interest); or lastly, the motive, etc. Inter- included in the early draft codes of 1951 esting as those suggestions were, none of and 1954, these criteria were met by colo- the criteria proposed sufficed by itself to nialism, apartheid, “possibly serious damage identify an offense against the peace and to the human environment and economic security of mankind. The seriousness of an aggression,” mercenarism, and international act was judged sometimes according to the terrorism.23 motive, sometimes according to the end As its work evolved, the Commission pursued, sometimes according to the particular nature of the offense (the horror and tended to concentrate on expanding the reprobation it arouses), sometimes accord- concept of crimes against humanity, listing ing to the physical extent of the disaster under that heading, rather than as auto- caused. Furthermore, these elements nomous categories of offense, a number of seemed difficult to separate and were often acts that had not been part of the definition combined in the same act.18 at Nuremberg, including apartheid,24 serious damage to the environment, drug traffick- The Commission observed that since the 1954 ing, trafficking in women and children, and draft of its code, many new crimes had been slavery.25 In its 1991 draft, the Commission defined by international legal instruments. abandoned entirely the concept of crimes These included colonialism, apartheid, use of against humanity. In distinct provisions, it nuclear weapons, environmental issues, mer- defined specific crimes of genocide and cenarism, taking of hostages, violence against apartheid, and then provided a list of acts whose persons enjoying diplomatic privileges and origin can be traced to the crimes against immunities, economic aggression, and aircraft humanity definition found in the Charter of hijacking. The Commission even considered the International Military Tribunal in a separate including such crimes as forgery of passports, provision entitled “Systematic or mass viola- dissemination of false or distorted news and tions of human rights.”26 The 1991 draft also insulting behavior towards a foreign state.19 contained provisions entitled “[c]olonial In the end, however, it recognized that domination and other forms of alien dom- there was a danger that it might “blur the ination,” “[r]ecruitment, use, financing and distinction between an international crime training of mercenaries,” “[i]nternational and an offence against the peace and security terrorism,” “[i]llicit traffic in narcotic of mankind.”20 For the Commission, “not drugs,” and “[w]ilful and severe damage to every international crime is necessarily an the environment.”27 But by 1996, when the offence against the peace and security of final draft code was submitted to the General mankind.”21 It therefore decided that: Assembly, the International Law Commis- sion had come back down to earth. There [T]he code ought to retain its particularly were only five provisions, dealing with serious character as an instrument deal- aggression, genocide, crimes against human- ing solely with offences distinguished by ity, “Crimes against United Nations and their especially horrible, cruel, savage and associated personnel and war crimes.”28 A sum- barbarous nature. These are essentially mary explanation accounted for the dramat- offences which threaten the very foundations of modern civilization and the values ically reduced ambitions of the Commission: it embodies. It is these particular characteristics which set apart offences against the With a view to reaching consensus, the peace and security of mankind and justify Commission has considerably reduced the 22 their separate codification. scope of the Code. On first reading in 1991, the draft Code comprised a list of 12 The Commission agreed that in addition to categories of crimes. Some members have the crimes prosecuted at Nuremberg and expressed their regrets at the reduced scope 271 9780415418768_4_018.qxd 26/11/2008 02:39PM Page 272

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of coverage of the Code. The Commission “serious violations of international human- acted in response to the interest of adop- itarian law.”33 The Security Council did not tion of the Code and of obtaining support include “aggression” or “crimes against by Governments. It is understood that the peace,” although the idea of an interna- inclusion of certain crimes in the Code does tional tribunal to deal with Iraqi aggression not affect the status of other crimes under in 1990 had been seriously mooted by the international law, and that the adoption of United States, the United Kingdom and the Code does not in any way preclude the further development of this important area the European Union (Gerald 1990, 1991; of law.29 Weller 1990). According to the Appeals Chamber of the International Criminal With the exception of “[c]rimes against Tribunal for the Former Yugoslavia, “serious United Nations and associated personnel,” the violations of international humanitarian draft code was essentially confined to crimes law” consist of breaches of “a rule protect- that had been recognized by international law ing important values,” whose breach in the late 1940s, although there had been “must involve grave consequences for the some significant evolution in terms of their victim.”34 scope. The Appeals Chamber of the Inter- national Criminal Tribunal for the Former Yugoslavia has described the subject matter Judicial attempts to define jurisdiction of the ad hoc tribunals as international crimes encompassing “Universally Condemned Offences.”35 The judges actually capitalized Explaining the nature of international crimes the three words, suggesting that they were is a matter that has also confronted the attempting to coin a new umbrella term judiciary. The District Court of Jerusalem, that would subsume genocide, crimes against in Eichmann, said that crimes that have humanity, and war crimes. Citing Judge “offended the whole of mankind and Rosalyn Higgins (1995: 72), of the Inter- shocked the conscience of nations are grave national Court of Justice, the Appeals offences against the law of nations itself Chamber said that “Universally Condemned (‘delicta juris gentium’).”30 On appeal, the Offences are a matter of concern to the Supreme Court of Israel said that: “[T]hese international community as a whole.” On crimes constitute acts which damage vital other occasions, the Appeals Chamber has international interests; they impair the foun- noted that its subject matter jurisdiction is dations and security of the international com- exercised over offenses that “do not affect munity; they violate the universal moral the interests of one State alone but shock values and humanitarian principles that lie the conscience of mankind.”36 Citing the hidden in the criminal law systems adopted Supreme Military Tribunal of Italy, in a by civilised nations.”31 Eichmann was prose- post-Second World War case, the Appeals cuted in accordance with Israeli laws that were Chamber said: modeled on article VI of the Charter of the International Military Tribunal and article II of These norms [concerning crimes against the Convention on the Prevention and Punish- laws and customs of war], due to their highly ethical and moral content, have a universal ment of the Crime of Genocide. character, not a territorial one . . . The sol- When the Security Council established the idarity among nations, aimed at alleviating ad hoc tribunals in the early 1990s, subject in the best possible way the horrors of war, matter jurisdiction was limited to war gave rise to the need to dictate rules which crimes, crimes against humanity and geno- do not recognise borders, punishing crim- cide.32 These were described collectively as inals wherever they may be.37 272 9780415418768_4_018.qxd 26/11/2008 02:39PM Page 273

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The Rome Statute uses the expression “the most tinctions does not mean they can be ignored. serious crimes of concern to the international Drawing the line between international community as a whole” in four places to crimes that are mala prohibita and those that describe the subject-matter jurisdiction of the are mala in se has significant legal effects. International Criminal Court.38 It also speaks In the negotiations leading up to the at one point of crimes that “shock the con- adoption of the Rome Statute, the distinction science of humanity.”39 Because the Court has was often made between “core crimes” and jurisdiction over genocide, crimes against “treaty crimes.” The implication here is that humanity, war crimes, and aggression, it can the “core crimes” owe their existence to be assumed that these four categories fall within customary international law. The legal con- the rubric of “most serious crimes of concern sequences of classifying a crime as international to the international community as a whole.” under customary international law cannot nec- But the line becomes blurred when reference essarily be the same as those that result from is made to the Final Act of the Rome inclusion of the crime within an international Conference. It notes that it was not possible treaty. In the latter case, the legal effects of to reach agreement during the Diplomatic codification of international crimes are set out Conference on a definition of terrorist acts, in the treaties themselves, and will only bind which are “serious crimes of concern to the those states that are parties to the instruments international community,” and international in question. The analysis is not made any eas- trafficking of illicit drugs, which is a “very ier by the fact that many of the serious inter- serious crime.” According to the Final national crimes that “shock the conscience” Act, these “scourges . . . pose serious threats have also been codified. Referring to the first to international peace and security.”40 The great international criminal law treaty, the Final Act recommended that terrorist acts and Convention on the Prevention and Punishment of international drug trafficking be considered the Crime of Genocide, the International Court for inclusion in the Rome Statute by amend- of Justice said: ment, implying that both fit the concept of “most serious crimes of concern to the inter- The origins of the Convention show that national community as a whole” that “shock it was the intention of the United Nations the conscience of humanity.” to condemn and punish genocide as “a crime This discussion is not intended to provide under international law” involving a denial a comprehensive theoretical framework for of the right of existence of entire human identifying international crimes, or for clas- groups, a denial which shocks the conscience sifying them in categories. Rather, it of mankind and results in great losses to humanity, and which is contrary to moral attempts to highlight some of the difficulties law and to the spirit and aims of the United involved in the exercise. This is a matter on Nations. The first consequence arising which modern international law lacks lim- from this conception is that the principles pidity. In fact, the approaches appear some- underlying the Convention are principles what muddled and confused. Although there which are recognized by civilized nations is much to support a distinction between as binding on States, even without any con- crimes that are international for essentially prac- ventional obligation.41 tical reasons, such as piracy and trafficking in counterfeit currency, and those “atrocity There would be little disagreement that the crimes” that are prosecuted because they four crimes over which the International “shock the conscience of humanity,” there are Criminal Court has jurisdiction, in accordance cases that fall between and that seem to defy with article 5(1) of the Rome Statute, are also such attempts at classification, such as drug international crimes whose prohibition is trafficking. But lack of clarity about these dis- “recognized by civilized nations as binding on 273 9780415418768_4_018.qxd 26/11/2008 02:39PM Page 274

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States, even without any conventional in the Permanent Court of International obligation.” It is not so obvious, however, Justice case concerning legislative decrees that the multitude of acts considered by in Danzig.42 When challenged by the Nazi the International Law Commission over the defendants who argued that “crimes against years, and the crimes of terrorism and drug peace” had never before been punishable, the trafficking being studied as possible amend- Allied judges at Nuremberg tried to demon- ments to the Rome Statute, also belong in strate that acts of aggression had indeed been the category. The distinction is important universally condemned in past decades. because of the legal effects that flow from The Nuremberg judges also conceded that recognition as an international crime belong- such crimes should be punished because it ing to the category variously described in this would violate principles of justice to let the chapter as “new crimes,” “atrocity crimes,” offenders go free.43 But this argument is today “crimes against the peace and security of less tenable because of the quite clear terms mankind,” “crimes that shock the con- of international human rights law: “No one science of humanity,” “serious violations of shall be held guilty of any penal offence on international humanitarian law,” and “the most account of any act or omission which did not serious crimes of concern to the international constitute a penal offense, under national or community as a whole.” international law, at the time when it was committed.”44 In other words, it is not enough to argue that the act was universally abhor- Legal consequences of rent and that it would be unjust not to pun- international criminalization ish offenders. Where a crime is not provided for under national law, retrospective punish- There are several important consequences ment is only acceptable if it can be demon- that result from the characterization of acts as strated that the act itself was condemned by an “international crime” of the “new crimes” international law. variety: they can be prosecuted retroact- The second consequence of characterizing ively; they can be prosecuted by courts that an act as an international crime is that this would not normally exercise jurisdiction; authorizes prosecution by courts that would they impose duties on states with respect to not normally be allowed to exercise jurisdic- mutual legal assistance in the investigation, tion. The exercise of jurisdiction over crimes extradition and prosecution of such offenses; is a facet of national sovereignty. Pursuant defenses that may exist for ordinary crimes, to principles of international law, as a general are eliminated or reduced; traditional rules rule states have only exercised jurisdiction concerning immunity of heads of state and over crimes when they could demonstrate other senior officials are relaxed; statutory an appropriate link or interest. Normally, this limitations are prohibited. Although some of consisted of a territorial connection, either these features may also apply to certain other because the crime was committed on the state’s “treaty crimes” of the mala prohibita genus, this territory or because it had significant effects is not an automatic consequence of their on that territory. More exceptionally, inter- designation as international crimes. national law has also allowed states to exer- Retroactive prosecution operates as an cise jurisdiction over acts committed by their exception to the general rule that prevents a nationals, and over acts of which their own person being tried for an offense that was not nationals are victims,45 even outside their own prohibited by law at the time of its commis- territory. sion. There is a long history of this norm Defining an offense as an “international in national constitutions, which was recog- crime” authorizes some type of international nized in international law as early as 1935 jurisdiction. This may take the form either of 274 9780415418768_4_018.qxd 26/11/2008 02:39PM Page 275

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an international tribunal as such, or of pro- Among recent indications that states secution by courts of a state that has no signi- generally accept universal jurisdiction over ficant connection with the offense, under the genocide and similar international crimes are universality principle. Views on this subject the growing application of the principle in have evolved considerably over the years. national law. More and more states enact There is now much support for the position legislation permitting them to prosecute on that international law entitles the exercise of this basis. Even the United States of universal jurisdiction for the core international America, which has been historically rather crimes, although the views of judges of the reticent about the concept, enacted a statute International Court of Justice were incon- in late 2007 permitting its courts to prosecute sistent when they were canvassed on this genocide on the basis of universal jurisdiction.52 subject in early 2002.46 A case now pending Further evidence is provided by debates in before the Court confronts this issue the Security Council, where there has been directly.47 It is useful to recall that in 1948, at least tacit endorsement of the referral of cases the United Nations General Assembly re- by the International Criminal Tribunal for jected the concept of universal jurisdiction Rwanda to states prepared to hold trials of over genocide.48 This had been proposed by genocide suspects using universal jurisdiction.53 the authors of the original resolutions in the The third significant result of the recogni- General Assembly, who lamented in their tion of an offense as an international crime first draft the fact that “genocide when com- is that it imposes duties on states with respect mitted in time of peace lies within the exclu- to investigation, prosecution and extradi- sive territorial jurisdiction of the judiciary of tion. This is sometimes expressed with a every State concerned.”49 They failed in Latin expression, aut dedere aut judicare (liter- their efforts to obtain a declaration from the ally, extradite or prosecute). While related to General Assembly that would change this the concept of universal jurisdiction, the situation, with the result that article VI of two should not be confused: aut dedere aut judi- the Genocide Convention says: “Persons charged care imposes an obligation, whereas universal with genocide or any of the other acts jurisdiction is merely an option available to enumerated in article 3 shall be tried by a com- states. The duty to prosecute or extradite is petent tribunal of the State in the territory of recognized in some major treaties, and it is which the act was committed, or by such in- therefore beyond question that in these ternational penal tribunal as may have juris- cases states have willingly and intentionally diction with respect to those Contracting accepted such obligations. The grave breach Parties which shall have accepted its jurisdic- provisions of the four Geneva Conventions tion.”50 Fifteen years later, the District Court require that “[e]ach High Contracting Party of Jerusalem, in Eichmann, said: “It is the con- [...] search for persons alleged to have com- sensus of opinion that the absence from this mitted, or to have ordered to be committed, Convention of a provision establishing the such grave breaches, and [ ...] bring such per- principle of universality (and, with that, the sons, regardless of their nationality, before its failure to constitute an international criminal own courts.” Alternatively, a state may, “if it tribunal) is a grave defect in the Convention prefers, and in accordance with the provisions which is likely to weaken the joint efforts for of its own legislation, hand such persons over the prevention of the commission of this for trial to another High Contracting Party abhorrent crime and the punishment of its concerned, provided such High Contracting perpetrators.”51 The Court held that Israel Party has made out a prima facie case.”54 The was entitled to exercise universal jurisdiction Convention against Torture and Other Cruel, over genocide because this was authorized by Inhuman or Degrading Treatment or Punishment customary international law. imposes something similar.55 It has been 275 9780415418768_4_018.qxd 26/11/2008 02:39PM Page 276

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argued that these obligations to prosecute Principles concerning immunities are or extradite are also required by customary relaxed to some extent when prosecution international law with respect to a much of international crimes is concerned, although broader range of international crimes. While not as much as some would like. According this may be a desirable result, from the stand- to the International Court of Justice, the point of the protection of human rights, it immunity of heads of state and other high is difficult to find any real evidence in the officials is not a bar to prosecution before “cer- practice of states to suggest that they consider tain international criminal tribunals.” The themselves to be under such obligations. judgment offered the International Criminal The fourth significant result of the classi- Court and the two ad hoc tribunals for the fication of an act as an international crime former Yugoslavia and Rwanda as examples. is the reduction or elimination of certain However, the International Court of Justice defenses that are generally available under also confirmed that such immunities persist national law with respect to ordinary crimes. in prosecutions before courts of third states The Charter of the International Military even when it is international crimes that are Tribunal declared that “[t]he fact that the being prosecuted.64 The logic of the Court’s Defendant acted pursuant to order of his position is not entirely clear. The elimination Government or of a superior shall not free him of immunity before the ad hoc tribunals is a from responsibility,”56 and a similar provision reasonable consequence of their establishment has been included in the statutes of the more by the United Nations Security Council. recent generation of international criminal tri- Nowhere in the statutes of the ad hoc tribunals bunals.57 The Rome Statute of the International is it actually stated that there can be no immu- Criminal Court takes a slightly less absolutist nity, and the finding that immunity does not view, allowing the defense to the extent exist before such international tribunals is a that orders are not “manifestly unlawful,”58 matter of judicial construction.65 The Rome a position that probably corresponds to that Statute of the International Criminal Court has of customary international law.59 Similarly, an explicit provision eliminating any immu- official capacity as a head of state or gov- nities.66 But this may be explained as the result ernment, a member of a government or of a conventional agreement by sovereign parliament, an elected representative or a states. It cannot be set up against heads of state government official is not a defense to an of third states, who preserve their immunity international crime.60 before the Court. These distinctions are not, The legal position on some defenses with unfortunately, considered in the famous pro- respect to international crimes remains nouncement of the International Court of unclear, however. The Rome Statute appears Justice in the Arrest Warrant case. to allow a defense of duress,61 whereas a Neither does the International Court of majority of the Appeals Chamber of the Justice consider the situation with respect to International Criminal Tribunal for the criminal tribunals established by the United Former Yugoslavia has ruled that the defense Nations but with the authority to prosecute is inadmissible to a charge of crimes against crimes that are not international in nature. humanity.62 The latest international justice Here there is a tension between form and con- instrument to be adopted by the United tent. The Special Court for Sierra Leone, Nations Security Council, the Statute of the for example, has jurisdiction over certain Special Tribunal for Lebanon, has no such rules crimes recognized in the national criminal law concerning the exclusion of defenses, but this of the country, such as sexual relations with is easily explained by the fact that the Special a minor and arson.67 The Secretary-General Tribunal for Lebanon does not have juris- of the United Nations explained that they diction over international crimes.63 should be included precisely because they are 276 9780415418768_4_018.qxd 26/11/2008 02:39PM Page 277

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“either unregulated or inadequately regulated designed to assist the repression of crimes, such under international law.”68 The Special Court as arrangements for extradition and mutual for Sierra Leone has been held to be an “inter- legal assistance as well as the establishment of national court”69 but that does not serve to international bodies such as Interpol. These make such crimes international in nature. The apply to a variety of criminal acts under issue is posed even more acutely in the case national law, of varying degrees of serious- of the Special Tribunal for Lebanon, whose ness, as well as to transnational and genuinely subject matter jurisdiction is entirely drawn international crimes. International law has from Lebanese national law and has no claim also seen the establishment of international to encompass international crimes.70 criminal tribunals. Finally, international crimes may not be The international criminal tribunals subject to statutory limitations. During the mainly exercise jurisdiction over “international 1960s, as the application of statutory lim- crimes,” but there are exceptions – the cases itations in national penal codes to Nazi war of the Special Court for Sierra Leone and the criminals seemed imminent, there was a Special Tribunal for Lebanon have been movement to amend norms by which such discussed – indicating that a precise equation prosecutions could be time barred. Accord- cannot be made between the international ingly, there were some changes to domestic nature of the institution and the international legislation.71 On an international level, these nature of its subject matter jurisdiction. developments took the form of General Moreover, the concept of “international Assembly resolutions,72 and treaties within both crime” is also extremely important at the level the United Nations system73 and that of the of national jurisdictions, where it authorizes Council of Europe.74 Both of the latter a number of derogations from general rules instruments refer to the crime of genocide and applicable in criminal law such as those con- to crimes against humanity as offenses for cerning territorial jurisdiction, immunities, the which there shall be no statutory limitation. permissibility of statutory limitations and the The French Cour de Cassation determined, in prohibition of retroactive offenses. the Barbie case, that the prohibition on statu- For this reason, it is important to have a tory limitations for crimes against humanity theoretical construct permitting the iden- is now part of customary law.75 The Rome tification of international crimes and their dis- Statute declares that the crimes within the tinction from crimes that are merely national Court’s jurisdiction are not subject to a or transnational in nature, or that are inter- statute of limitations.76 Given that the Rome national crimes recognized for practical Statute has no statutory limitations, the pro- reasons rather than because they “shock the vision appears to be directed at national conscience” of humanity or are “Universally legislation. It effectively prohibits domestic Condemned Offences.” The task is complex justice systems from establishing or maintain- and confusing, and there is no generally ing statutory limitations with respect to the accepted set of conditions permitting such four crimes within the jurisdiction of the classification. Some categories are beyond International Criminal Court. debate, of course. These include genocide, crimes against humanity, war crimes and aggression. Their status would seem to be Conclusion confirmed by inclusion within the subject matter jurisdiction of the International Criminal The internationalization of criminal law has Court, were it not for the fact that amend- brought with it developments of both a ment of the Rome Statute is being considered structural and a substantive nature. At the struc- so as to include crimes whose claim as tural level, there is a panoply of mechanisms cognates to the existing crimes is far from 277 9780415418768_4_018.qxd 26/11/2008 02:39PM Page 278

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obvious. No single set of criteria appears to 7 Convention on the Prevention and Punishment of provide an adequate framework. We agree the Crime of Genocide (1951) 78 UNTS 277. that genocide is, of course, a “Universally 8 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces Condemned Offence,” but doesn’t murder in the Field 1950: 75 UNTS 31, art. 49; also belong to this category? Geneva Convention for the Amelioration of the The exercise is perhaps no simpler in Condition of the Wounded, Sick and Shipwrecked national law, where efforts to classify crimes Members of the Armed Forces at Sea 1950: 75 as mala prohibita and mala in se have always been UNTS 85, art. 50; Geneva Convention Relative to the Treatment of Prisoners of War 1950: 75 imprecise. Perhaps the real difﬁculty is that UNTS 135, art. 129; Geneva Convention Rel- we have embarked on a process of globaliza- ative to the Protection of Civilians 1950: 75 tion that is still very incomplete. The state UNTS 135, art. 146. monopoly on criminal law jurisdiction is 9 United Nations 1946: UN Doc. A/BUR/50. slowly being eroded. What are today known 10 United Nations 1947: GA RES. 177 (II). 11 United Nations N.D.: UN Doc. A/CN.4/ as “international crimes” may be simply 25, para. 9. manifestations of the beginning of this 12 United Nations 1950: para. 95. phenomenon. Perhaps at some point in the 13 United Nations 1950: para. 97; also para. 100. future, criminal jurisdictions throughout the 14 United Nations N.D.: para. 35, original world will have the authority to prosecute all emphasis. 15 United Nations N.D.: para. 35, original serious crimes, wherever committed and by emphasis. whomever. Why, indeed, should borders 16 United Nations 1951: para. 59. make any difference when a serious crime 17 United Nations 1954: para. 54. has been committed against a fellow human 18 United Nations 1984: para. 34. being? 19 United Nations 1984: paras. 52–63. 20 United Nations 1984: para. 63. 21 United Nations 1984: para. 63. 22 United Nations 1984: para. 63. Notes 23 United Nations 1984: para. 65. See also: United Nations 1985: paras. 61–94; United 1 Velázquez Rodriquez vs. Honduras, July 29, Nations 1988: paras. 262–7. 1988, Series C, No. 4, (1992); Bautista de 24 Apartheid had already been deﬁned as a crime Arellana vs. Colombia (No. 563/1993), UN Doc. against humanity in the Convention on the CCPR/C/55/D/563/1993; Laureano vs. Peru Non-Applicability of Statutory Limitations to War (No. 540/1993), UN Doc. CCPR/C/56/ Crimes and Crimes against Humanity, (1968) 754 D/540/1993; Streletz, Kessler and Krenz vs. UNTS 73, art. 1(b), International Convention on Germany, March 22, 2001; Akkoç vs. Turkey, the Suppression and Punishment of the Crime of October 10, 2000. Apartheid, (1976) 1015 UNTS 244, art. I(1). 2 See, e.g. MC vs. Bulgaria (Application 25 United Nations 1986a: paras. 93–102; United no. 39272/98), Judgment, December 4, 2003. Nations 1986b: paras. 199–210. 3 On the efforts of Garofalo and others, see the 26 United Nations 1991: para. 176. report by Vespasian Pella to the United 27 United Nations 1991: para. 176. Nations International Law Commission: 28 United Nations 1996: para. 50. “Memorandum présenté par le Secrétariat,” UN 29 United Nations 1996: para. 46. Doc. A/CN.4/39, para. 30. 30 AG Israel vs. Eichmann 1968, 36 ILR 5 4 France vs. Turkey, S.S. Lotus (1927) PCIJ Ser. (District Court, Jerusalem): para. 12. A. ( Judgments) No. 10 ( Judgment No. 9) 31 A.G. Israel vs. Eichmann 1968 , 36 ILR 277 (1929). (Supreme Court of Israel): 291–93. 5 English translation quoted in United Nations 32 UN Security Council 1993b: annex, arts. War Crimes Commission 1948: 35. 2–5; UN Security Council 1994: annex, arts. 6 Agreement for the Prosecution and Punishment of 2–4. Major War Criminals of the European Axis, and 33 UN Doc. S/RES/808 (1993a), para. 1; Establishing the Charter of the International United Nations 1993: para. 33; UN Security Military Tribunal (IMT), annex, (1951) 82 Council 1993a: annex, preamble, arts. 1, 9(1), UNTS 279, art. 6. 10(1)–(2), 23(1), 29(1).

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34 Prosecutor v. TadiC (Case No. IT-94-1-AR72), Congo vs. Belgium (Arrest Warrant of 11 April Decision on the Defence Motion for Inter- 2000), Declaration of Judge Ranjeva, Feb- locutory Appeal on Jurisdiction, October 2, ruary 14, 2002; Democratic Republic of Congo 1995, para. 94. vs. Belgium (Arrest Warrant of 11 April 2000), 35 Prosecutor v. NikoliC 2003 (Case No. IT-94-2- Separate Opinion of Judge Rezek, February 14, AR 73), paras. 24, 25. 2002; Democratic Republic of Congo vs. Belgium 36 Prosecutor v. TadiC (Case No. IT-94-1-AR72), (Arrest Warrant of 11 April 2000), Dissenting Decision on the Defence Motion for Inter- Opinion of Judge Van den Wyngaert, Feb- locutory Appeal on Jurisdiction, October 2, ruary 14, 2002. These were individual opin- 1995, para. 57. ions and, strictly speaking, only obiter dicta. The 37 Ibid. (citing Sup. Mil. Trib., Italy, 1950; matter is raised directly in pending litigation unofﬁcial transcript). before the International Court of Justice: 38 Rome Statute of the International Criminal Court, Republic of the Congo vs. France (Case Concern- (2002) 2187 UNTS 90, preamble, paras. 4 and ing Certain Criminal Proceedings in France), 9, art. 1, art. 5(1). Application, December 9, 2002. 39 Ibid., preamble, para. 2. 47 Republic of the Congo vs. France (Case Concerning 40 United Nations Diplomatic Conference of Certain Criminal Proceedings in France), Request Plenipotentiaries on the Establishment of an Provisional Measure, Order of 17 June 2003, [2003] International Criminal Court (1998) “Final ICJ Reports 102. Act of the United Nations Diplomatic Con- 48 UN Doc. A/C.6/SR.100. See the discussion ference of Plenipotentiaries on the Establish- in Schabas 2000: 353–8. ment of an International Criminal Court”, UN 49 Draft Resolution, U.N. Doc. A/BUR/50. Doc. A/CONF.183/10. 50 Convention on the Prevention and Punishment of 41 Reservations to the Convention on the Prevention the Crime of Genocide (1951) 78 UNTS 277. and Punishment of the Crime of Genocide 51 AG Israel vs. Eichmann (1968) 36 ILR 5 (Advisory Opinion) (1951) ICJ Reports 16, (District Court, Jerusalem), para. 24. p. 23. 52 S. 888, 110th Cong. § 1; 153 Cong. Rec. S 42 Consistency of Certain Danzig Legislative Decrees 4150; H.R. 2489, 110th Cong. § 1; 153 with the Constitution of the Free City, Advisory Cong. Rec. H 14207. Opinion [1935] PCIJ 2, Series A/B, No. 65 53 United Nations Security Council (2007) (December 4, 1935), p. 51. “United Nations Security Council”, 62nd 43 France et al. vs. Göring et al. (1946) 22 IMT 203, year: 5796th meeting, Monday, 10 December 13 ILR 203, 41 American Journal of International 2007, New York, UN Doc. S/PV.5796. Law 172, p. 217. 54 Geneva Convention Relative to the Protection of 44 Universal Declaration of Human Rights, GA Civilian Persons in Time of War (1950) 75 Res. 217 A (III), UN Doc. A/810, art. 11(2). UNTS 287, art. 146. Also: Geneva Convention Also: International Covenant on Civil and Polit- for the Amelioration of the Condition of the ical Rights (1966) 999 UNTS 171, Art. 15. Wounded and Sick in Armed Forces in the Field 45 S.S. Lotus (France vs. Turkey) [1927] PCIJ Ser. (1949) 75 UNTS 31, art. 49; Geneva Convention A. No. 10 ( Judgment No. 9) (September 7, for the Amelioration of the Condition of Wounded, 1927). Sick and Shipwrecked Members of Armed Forces 46 See: Democratic Republic of Congo v. Belgium at Sea (1950) 75 UNTS 85, art. 50; Geneva (Arrest Warrant of 11 April 2000), Separate Convention Relative to the Treatment of Prisoners Opinion of Judge Bula-Bula, February 14, 2002; of War (1950) 75 UNTS 135, art. 129. Democratic Republic of Congo vs. Belgium (Arrest 55 Convention against Torture and Other Cruel, Warrant of 11 April 2000), Separate Opinion Inhuman or Degrading Treatment or Punishment, of President Guillaume, February 14, 2002; GA Res. 39/46, annex, art. 5(2). See also Democratic Republic of Congo v. Belgium (Arrest International Convention for the Protection of All Warrant of 11 April 2000), Joint Separate Persons from Enforced Disappearance, UN Doc. Opinion of Judges Higgins, Kooijmans and A/RES/47/133, annex, art. 9(2). Buergenthal, February 14, 2002; Democratic 56 Agreement for the Prosecution and Punishment of Republic of Congo vs. Belgium (Arrest Warrant Major War Criminals of the European Axis, and of 11 April 2000), Separate Opinion of Judge Establishing the Charter of the International Koroma, February 14, 2002; Democratic Military Tribunal (IMT), (1951) 82 UNTS Republic of Congo vs. Belgium (Arrest Warrant of 279, annex, art. 8. 11 April 2000), Dissenting Opinion of Judge 57 UN Security Council 1993b: annex, art. 7(4); Oda, February 14, 2002; Democratic Republic of UN Security Council 1994: annex, art. 6(4);

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Statute of the Special Court for Sierra Leone effect. But careful reading of the provision shows (2002) 2178 UNTS 138, annex, art. 6(4). that it deals with the defense of official capa- 58 Rome Statute of the International Criminal Court, city, which is not the same thing. The distinc- (2002) 2187 UNTS 90, art. 33. tion between the defense of official capacity 59 Empire vs. Dithmar and Boldt (Hospital Ship and immunities can be seen clearly in the two “Llandovery Castle”), (1921) 2 ILR 437, 16 paragraphs of article 27 of the Rome Statute. American Journal of International Law 708; It is also apparent with reference to paragraph German War Trials, Report of Proceedings before 61 of the Arrest Warrant case, which cites art- the Supreme Court in Leipzig, Cmd. 1450, icle 27(2) of the Rome Statute but no corres- London: HMSO, 1921, pp. 56–7. ponding provision in the statutes of the ad hoc 60 Agreement for the Prosecution and Punishment of tribunals. Major War Criminals of the European Axis, and 66 Rome Statute of the International Criminal Court, Establishing the Charter of the International (2002) 2187 UNTS 90, art. 27(2). Military Tribunal (IMT), (1951) 82 UNTS 67 Statute of the Special Court for Sierra Leone 279, annex, art. 7; Convention on the Prevention (2002) 2178 UNTS 138, annex, art. 5. and Punishment of the Crime of Genocide, (1951) 68 United Nations 2000a: para. 19. 78 UNTS 277, art. 4; Rome Statute of the 69 Prosecutor vs. Taylor (Case No. SCSL-2003-01- International Criminal Court, (2002) 2187 I), Decision on Immunity from Jurisdiction, UNTS 90, art. 27(1); UN Security Council May 21, 2004. 1993b, annex, art. 7(4); UN Security Council 70 United Nations 2000: paras. 19–25. 1994: annex, art. 6(4); Statute of the Special Court 71 Germany seems to have had a 20-year limita- for Sierra Leone, (2002) 2178 UNTS 138, tion period on Nazi crimes not contemplated annex, art. 6(4). by Control Council Law No. 10. On March 25, 61 Rome Statute of the International Criminal Court 1965 the Bundestag extended the limitation date (2002) 2187 UNTS 90, art. 31(1)(d). for murder to December 31, 1969, which was 62 Prosecutor vs. ErdemoviC 1997a: para. 75; the twentieth anniversary of establishment of Prosecutor vs. ErdemoviC 1997b: para. 12. the German Federal Republic. But this was 63 Statute of the Special Tribunal for Lebanon, UN inadequate and the date was again extended Doc. S/RES/1757 (2007), Attachment. until December 31, 1979. On July 3, 1979 the 64 Democratic Republic of Congo vs. Belgium (Arrest Bundestag voted to eliminate any limitation date Warrant of 11 April 2000), Judgment, for murder (see Monson 1982). February 14, 2002, para. 61. This largely 72 G.A. Res. 3 (I); G.A. Res. 170 (II); G.A. Res. overturned a somewhat more liberal ruling by 2583 (XXIV); G.A. Res. 2712 (XXV); G.A. the United Kingdom’s House of Lords in the Res. 2840 (XXVI); G.A. Res. 3020 (XXVII); celebrated Pinochet case. In R. vs. Bartle and the G.A. Res. 3074 (XXVIII). Commissioner of Police for the Metropolis and 73 Convention on the Non-applicability of Statutory others, ex parte Pinochet Ugarte, (1999) 2 All. Limitations to War Crimes and Crimes Against ER 97 (HL), a majority of the House of Lords Humanity, 754 U.N.T.S. 73 (1970) (see said “[s]uch immunity is only in respect of Miller 1971). ‘official’ acts performed in the exercise of his 74 European Convention on the Non Applicability of functions.” There is a gap between the two Statutory Limitation to Crimes against Humanity tests, as dissenting Judge Van den Wyngaert and War Crimes of January 25, 1974, E.T.S. 82. observed: Democratic Republic of Congo v. 75 Fédération Nationale des Déportés et Internés Belgium (Arrest Warrant of 11 April 2000), Résistants et Patriotes et al. vs. Barbie, (1984) 78 Dissenting Opinion of Judge Van den ILR 125, 135. Also France, Assemblée Wyngaert, February 14, 2002, para. 36. Nationale, Rapport d’Information déposé en 65 Prosecutor v. MiloSeviC (Case No. IT-02-54- Application de l’Article 145 du Règlement par la PT), Decision on Preliminary Motions, 8 Mission d’Iinformation de la Commission de la November 2001, paras. 26–34; Prosecutor v. Défense Nationale et des Forces Armées et de Taylor (Case No. SCSL-2003-01-I), Decision la Commission des Affaires Étrangères, sur les on Immunity from Jurisdiction, May 31, Opérations Militaires menées par la France, 2004. It is widely believed that article 7(2) of d’autres pays et l’ONU au Rwanda entre 1990 et the Statute of the International Criminal Tribunal 1994, p. 286 (1999). for the Former Yugoslavia, and the equivalent pro- 76 Rome Statute of the International Criminal Court, visions of the other statutes, operate to this (2002) 2187 UNTS 90, art. 29.

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19 Challenges of the “new terrorism”

John F. Murphy

An especially disquieting aspect of the “new Because of the nature of the new terrorism, it has terrorism” is the increased willingness of terrorists proved to be necessary to employ some modern to kill large numbers of people and to make no dis- approaches to combating terrorism. For example, it tinction between military and civilian targets. is clear that terrorists in several locations have now Another facet is the extraordinary extent to which moved beyond conventional tactics to engage in well it has been able to globalize itself. Still another is supplied and well-planned insurgencies. Whether the debate over the appropriate legal regime to apply one approaches counterterrorism from the military to it. Prior to the September 11, 2001 attacks, or the law enforcement model, it is clear that an international terrorism had been treated primarily ideological struggle is a key part of the counter- as a criminal law matter with emphasis placed on terrorism effort. The most important ideological preventing the commission of the crime through intel- struggle, however, is not likely to be that between ligence or law enforcement means, or, if prevention al Qaeda and the west. Rather, it is the struggle failed, on the apprehension, prosecution and pun- within Islam itself. Other important methods of ishment of the perpetrators. After September 11, combating terrorism, such as the gathering of intel- however, the criminal justice approach was de- ligence, recent resolutions of the U.N. Security emphasized and to a considerable extent supplanted Council, efforts to block the financing of terrorism, by the use of military means. A decision to employ and civil lawsuits against terrorists, terrorist organ- the military model of counter-terrorism in place of izations, and states that sponsor terrorism, are also the law enforcement model, or vice versa, may have briefly explored in this essay and in some concluding serious functional consequences. For example, observations. under the law enforcement model, it is impermissible to pursue and kill a suspected criminal before We have cause to regret that a legal con- his capture, unless it is necessary to do so as a mat- cept of “terrorism” was ever inflicted upon ter of self-defense. Under the military model, it is us. The term is imprecise; it is ambiguous; permissible to pursue the enemy with the intent and above all, it serves no operative legal to kill. Under normally applicable criminal law, purpose. moreover, conviction may be difficult because of (Baxter 1974: 380) the requirement that the crime be proved “beyond a reasonable doubt” and other barriers posed by The trenchant observation of Richard criminal procedure and constitutional standards. Baxter, late Professor of Law at Harvard and 281 9780415418768_4_019.qxd 26/11/2008 02:39PM Page 282

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Judge on the International Court of Justice, Because of these varying approaches and the published in 1974, has stood the test of “clash of values” among its member states, with time. The term “terrorism” is imprecise, it the result being an inability to reach agree- is ambiguous, and, furthermore, serves no ment on a definition, the United Nations operative legal purpose. But above all, the hard has been unsuccessful in its efforts to conclude school of experience has shown, it has con- a comprehensive treaty against terrorism.2 stituted, and continues to constitute, a major Instead, the world community has attempted barrier to efforts to combat the criminal acts to resolve the question of definition largely often loosely described as “terrorism.” by ignoring it and focusing instead on iden- In practice, the terms “terrorism” and tifying particular criminal acts to be prevented “terrorists” have been used by politicians and and punished and on particular targets to be diplomats as labels to pin on their enemies. protected. The result has been a “piecemeal” The cliché “One man’s terrorist is another approach to combating international terror- man’s freedom fighter” is a notorious reflec- ism, an approach followed at several differ- tion of this game of semantics. It also reflects ent levels. That is, a number of global treaties a serious conflict of values between those and conventions have been adopted at the who believe that the end always justifies United Nations and in other fora. At the same the means and those who do not. Thus, in time, several regional conventions have been the current environment especially, there are drafted to reflect the particular needs and per- those, apparently increasing dramatically in spectives of the states in the region concerned. number, who, in an effort to reach their end Finally, a number of bilateral agreements or goal, are perfectly willing to engage in the have been adopted. Some of these deal spe- deliberate targeting and massive slaughter cifically with a particular manifestation of of civilians, employ suicide bombers, use international terrorism; others are relevant to children as shields, and behead helpless international terrorism, although they cover hostages before a worldwide audience. a wide variety of other crimes as well. This clash of fundamental values has been At this writing, the United Nations or its a major factor contributing to the failure to specialized agencies have adopted 13 global, agree on a definition of terrorism in the United multilateral antiterrorist conventions. These Nations and in other international fora.1 include: Convention on Offences and Cer- Some countries believe that the causes of ter- tain Other Acts Committed on Board Aircraft rorism or the political motivation of the (1963); Convention for the Suppression of individual terrorists are relevant to the prob- Unlawful Acts against the Safety of Civilian lem of definition. For example, the position Aviation (1971); Convention on the Pre- of some governments has been that indi- vention and Punishment of Crimes against vidual acts of violence can be defined as ter- Internationally Protected Persons, including rorism only if they are employed solely for Diplomatic Agents (1973); International personal gain or caprice; acts committed in Convention against the Taking of Hostages connection with a political cause, especially (1979); Convention on the Physical Protec- against colonialism and for national liberation of Nuclear Material (1979); Protocol for tion, fall outside the definition and constitute the Suppression of Unlawful Acts of Viol- legitimate measures of self-defense. Another ence at Airports Serving International Civil variant but closely related approach is to Aviation, supplementary to the Convention define as terrorism only the use of terror by for the Suppression of Unlawful Acts against governments, or so-called “state terrorism.” the Safety of Civil Aviation (1988); Conven- Indeed, the word “terror” was first used in tion against the Safety of Maritime Naviga- connection with the Jacobin “Reign of tion (1988); Protocol for the Suppression of Terror” during the French Revolution. Unlawful Acts against the Safety of Fixed 282 9780415418768_4_019.qxd 26/11/2008 02:39PM Page 283

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Platforms Located on the Continental Shelf occur primarily outside the territorial (1988); Convention on the Marking of jurisdiction of the United States or Plastic Explosives for the Purpose of Detec- transcend national boundaries in terms tion (1991); International Convention for the of the means by which they are Suppression of Terrorist Bombing (1997); accomplished, the persons they appear International Convention for the Suppres- intended to intimidate or coerce, or sion of the Financing of Terrorism (1999);3 the locale in which their perpetrators and, most recently, International Conven- operate or seek asylum.5 tion on the Suppression of Acts of Nuclear Terrorism (United Nations 2005b), which With this brief background to some of the entered into force in 2007. Most of these con- definitional problems of terrorism, let us ventions contain no definition of terrorism consider some of the salient aspects of the whatsoever. A few, such as the International “new terrorism.” Convention for the Suppression of Terrorist Bombings and the International Convention for the Suppression of the Financing of The “new terrorism” Terrorism, contain definitions of the crime they cover that contain elements of the Back in the (relatively) halcyon days of the crime of terrorism, but they are limited in effect “old terrorism,” the conventional wisdom to the conventions in which they appear and was that terrorists had little interest in kill- do not represent agreement on a compre- ing large numbers of people because it 4 hensive definition of terrorism per se. would undermine their efforts to gain sym- Despite the world community’s inability pathy for their cause. An especially disquiet- to agree on a definition of terrorism, and ing aspect of the new terrorism is the despite the many practical problems defini- increased willingness of terrorists to kill large tions of terrorism pose, it is necessary at a numbers of people and to make no distinc- minimum to have a rough working definition between military and civilian targets.6 tion of the subject we are discussing. To this A major cause of this radical change in atti- end, one might consider the definition of tude has been aptly pinpointed by Jeffrey D. “international terrorism” that appears in the Simon (2002: 11): U.S. federal crime code’s chapter on terrorism. According to this definition, “interna- Al Qaeda . . . is representative of the emer- tional terrorism” means activities that: gence of the religious-inspired terrorist groups that have become the predominant involve violent acts dangerous to form of terrorism in recent years. One of human life that are a violation of the the key differences between religious- criminal laws of the United States or of inspired terrorists and politically motivated any state, or that would be a violation ones is that the religious-inspired terrorists if committed within the jurisdiction of have fewer constraints in their minds about the United States or of any state killing large numbers of people. All non- appear to be intended: believers are viewed as the enemy, and the to intimidate or coerce a civilian religious terrorists are less concerned than political terrorists about a possible backlash population from their supporters if they kill large to influence the policy of a govern- numbers of innocent people. The goal of ment by intimidation or coercion the religious terrorist is transformation of all to affect the conduct of a govern- society to their religious beliefs, and they ment by mass destruction, assassina- believe that killing infidels or nonbelievers tion, or kidnapping will result in their being rewarded in the 283 9780415418768_4_019.qxd 26/11/2008 02:39PM Page 284

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afterlife. Bin Laden and Al Qaeda’s goal was Indeed, on July 17, 2007, the U.S. White to drive U.S. and Western influences out House released a National Intelligence of the Middle East and help bring to power Estimate, which represents the consensus radical Islamic regimes around the world. view of all 16 agencies that make up the In February 1998, bin Laden and allied American intelligence community (see groups under the name “World Islamic Front Mazzetti and Sanger 2007: A1, col. 1). The for Jihad Against the Jews and Crusaders” report concludes that the United States is issued a fatwa, which is a Muslim religious order, stating that it was the religious duty losing ground on a number of fronts in the of all Muslims to wage a war on U.S. fight against al Qaeda and that the terrorist citizens, military and civilian, anywhere in front has significantly strengthened over the the world. past 2 years. One of the main reasons for al Qaeda’s resurgence, according to intelli- Another facet of the new terrorism is the gence officials and White House aides, is extraordinary extent to which it has been able the “hands-off approach toward the tribal to globalize itself. Although in many ways al areas by Pakistan’s president, Gen. Pervez Qaeda has been severely undermined, with Musharraf ” (Mazzetti and Sanger 2007: A1, many of its leaders dead or in jail, it has col. 1). As a result, American officials have succeeded in promoting its violent fanaticism reportedly been meeting and discussing “an on a worldwide basis and thereby gaining aggressive new strategy, one that would substantial numbers of new militants to its include both public and covert elements” cause. The result has been, in the words of because of “growing concern that pinprick some commentators, “terror by franchise” (see, attacks on Qaeda targets were not enough” e.g. Khalaf and Fidler 2007: 5, col. 1). That (see Mazzetti and Sanger 2007: A6, col. 1). is, while the jihadi threat has been suppressed The implication in this report that it in some countries – for example, Saudi might be necessary for U.S. military forces to Arabia and Indonesia – it is increasing in places take action in the tribal areas of Pakistan illus- in North Africa and in Lebanon. These al trates another facet of the “new terrorism”: Qaeda inspired groups in turn have established the debate over the appropriate legal regime links with a new breed of home-grown to apply to efforts to combat terrorism after terrorist. The problem is especially acute in the September 11, 2001 attacks. Prior to those the United Kingdom where radicalized attacks, international terrorism had been British Muslims have established links with treated primarily as a criminal law matter with Al Qaeda- and Taliban-sponsored training emphasis placed on preventing the commis- camps in Pakistan (Fidler 2007: A1, col. 1). In sion of the crime through intelligence or law continental Europe, home-grown terrorists enforcement means; or, if prevention failed, have established links with radical cells in on the apprehension, prosecution and pun- North Africa. ishment of the perpetrators. After September The current headquarters of Al Qaeda 11, however, the criminal justice approach was is reportedly in Waziristan and the Baujur deemphasized and to a considerable extent region, wild tribal areas on the borders be- supplanted by the use of military means. (On tween Pakistan and Afghanistan (see Bokhari this point, see Power 2007: 1.) and Fidler 2007: 5, col. 8). The Pakistani This shift to the military model of coun- government has been unsuccessful in its terterrorism has engendered considerable efforts to suppress the activities of al Qaeda controversy. Critics of this approach argue that and the Taliban in these areas, and a peace it threatens fundamental human rights and arrangement in 2006 between the Pakistani that it is unnecessary because normal law government and the tribal chiefs may have enforcement measures can effectively combat allowed al Qaeda more freedom to operate. the terrorist threat (see, e.g. Roth 2004: 2). 284 9780415418768_4_019.qxd 26/11/2008 02:39PM Page 285

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In sharp contrast, supporters of the military members of al Qaeda,9 has opted, at least in model contend that criminal law is “too significant part, for the military model . The weak a weapon” and that it was inadequate President’s order and subsequent developments to stop al Qaeda from planning and carrying from it have raised a host of international and out the attacks of September 11 (see, e.g. constitutional law issues. Space limitations Wedgwood and Roth 2004: 126). preclude a discussion of these in this essay. A decision to employ the military model For present purposes, suffice it to note that of counterterrorism in place of the law in Hamdan vs. Rumsfeld,10 by a 5–4 majority, enforcement model, or vice versa, may have the U.S. Supreme Court decided that the serious functional consequences.7 For ex- military commissions established by the ample, under the law enforcement model, it President lacked the authority to try suspects is impermissible to pursue and kill a suspected like Hamdan because their structure and criminal before his capture, unless it is neces- procedures violated both the Uniform Code sary to do so as a matter of self-defense. The of Military Justice and the Geneva Conven- goal here is to capture the suspect, subject him tions. In response, after strenuous negotiations, to trial in accordance with due process, and the Bush administration convinced Congress then, if he is convicted, impose an appropri- to pass the Military Commissions Act of ate sanction, which, in some cases, especially 2006,11 which, among other things, authorizes under U.S. law, could include the death “the use of military commissions to try alien penalty. Under the military model, it is per- unlawful enemy combatants engaged in hos- missible to pursue the enemy with the intent tilities against the United States for violations to kill. Capture in place of killing is required of the law of war and other offenses triable only when the enemy has surrendered. If the by military commission”; precludes habeas enemy surrenders, and he qualifies as a pris- corpus review on behalf of any detainee oner of war, he may not be subject to sanc- classified as an “unlawful enemy combatant”; tion unless he has committed a war crime. He and permits only D.C. Circuit Court of may, however, be detained until the end of Appeals review of such determinations by the conflict to prevent him from returning to Combatant Status Review Tribunals; and the battlefield; if the law enforcement model provides that “no person in any habeas action applies, he normally cannot be detained after or any other action may invoke the Geneva trial unless he has been convicted of a crime. Conventions or any protocols thereto as a Under normally applicable criminal law, source of rights, whether directly or indirectly, moreover, conviction may be difficult for any purpose in any court of the United because of the requirement that the crime be States.” Shortly after the passage of the proved “beyond a reasonable doubt” and other Military Commissions Act, the Court of barriers posed by criminal procedure and Appeals for the D.C. Circuit, in Boumediene constitutional standards. [and Al Odah] vs. Bush (2007), rejected, by a Because of these and many other differences 2–1 vote, petitions filed for writs of habeas between the law enforcement and military corpus filed by aliens captured abroad and models of counterterrorism, a heated debate detained as enemy aliens at the Guantanamo has arisen, especially in the United States, Bay Naval base in Cuba, on the ground that between those who favor trying alleged ter- it had no jurisdiction in such cases. It is likely rorists in civilian courts and those who favor that this and other issues will ultimately be military commissions as the appropriate decided by the U.S. Supreme Court. forum.8 For its part, the Bush administration, Parenthetically, it should be noted that through an executive order issued by Presid- since September 11 European states have ent George W. Bush providing for the cre- largely reacted to the new terrorism threats ation of special military commissions to try by means of traditional law enforcement 285 9780415418768_4_019.qxd 26/11/2008 02:39PM Page 286

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methods (see Warbrick 2004). Recently, Department of State (2007: 2): “Al-Qaeda however, there has been some recognition openly describes itself as a transnational guer- in Europe that the law enforcement model rilla movement; it applies classic insurgent may not suffice in all circumstances to cope strategies at the global level.” with the new terrorism.12 It has been suggested, Unfortunately, it is also clear that, when moreover, that, with the United States the magnitude of the September 11 attacks beginning to recognize that the early post- demonstrated the seriousness of the threat al September 11 position that terrorist detainees Qaeda had become, the United States mil- have few enforceable legal rights is unac- itary was woefully unprepared to cope with ceptable, a “global convergence on terror” may insurgencies. As noted by Samantha Power be developing (Goldsmith 2007: 11, col. 2).13 (2007: 9): “[T]he Army counterinsurgency The concern that terrorists may resort to manual had not been updated since 1986 and the use of weapons of mass destruction – the Marine Corps guide had not been nuclear, chemical, or biological – is of long revised since 1986.” Power (2007: 9) further standing (see, e.g. Jenkins and Rubin 1978). elaborates on the impact of such lack of Since September 11, however, this concern preparation: “In Afghanistan and Iraq, the has been greatly heightened. Moreover, armed forces did not have the appropriate Osama bin Laden and al Qaeda have made intelligence, linguistic capabilities, weapons, plain on many occasions their desire to equipment, force structures, civil affairs obtain weapons of mass destruction, especially know-how or capacity to train security nuclear weapons, and their use of civilian forces in other countries.” aircraft on September 11 and their effective In 2006 a new U.S. Army/Marine Corps employment of the internet since have Counterinsurgency Field Manual15 was pub- demonstrated their technological compe- lished. In the new foreward in the Univer- tence. Their competence with computers sity of Chicago version of the Manual, Lt. has led one commentator to suggest that they Colonel John A. Nagel writes that: “It is fair now have the capacity for hijacking satellites. to say that in 2003 most Army officers knew “Capturing signals beamed from outer space more about the U.S. Civil War than they [it is alleged] terrorists could devastate the did about counterinsurgency” (Department communications industry, shut down power of the Army 2007: xv). grids, and paralyze the ability of developed The primary architect of the Manual was countries to defend themselves” (see Wright General David Petraeus, who currently is the 2004: 40, 50).14 overall American commander in Iraq. At the We turn now to examine some modern time of writing there is some evidence that approaches of counterterrorism. the military aspects of the counterinsurgency in Iraq are going well (see, e.g. O’Hanlon and Pollack 2007: A17, col. 2), but, as General Counterinsurgency Petraeus and other military officers have noted, success in counterinsurgency requires Staying with the military model of counter- more than military capability, and there is so terrorism for the moment, it is clear that ter- far little evidence that the Iraqi government rorists in several locations have now moved has the capacity or the will necessary to take beyond conventional tactics to engage in the steps required for quelling the insurgency well-supplied and well-planned insurgencies. (see Mazzetti 2007: A11, col. 1).16 This is most evident in Iraq and Afghanistan, There is also the crucial issue of the time but significant terrorist insurgencies are also required, in both Iraq and Afghanistan, for present in such countries as the Philippines a well-run counterinsurgency strategy to and Malaysia. Indeed, according to the U.S. work. Sara Sewall (2006: xxi, xxxviii–xxxix), 286 9780415418768_4_019.qxd 26/11/2008 02:39PM Page 287

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a former Pentagon official who wrote the al Qaeda as “your agents.” Bin Laden has introduction to the University of Chicago stated flatly, “our fight against these gov- edition of the manual, for one is skeptical ernments is not separate from our fight that the U.S. public will be willing to “sup- against you.” These charges found a ready ply greater concentrations of forces, accept audience among millions of Arabs and higher casualties, fund serious nation- Muslims angry at the United States because of issues ranging from Iraq to Palestine building and stay many long years to conduct to America’s support for their countries’ counterinsurgency by the book.” repressive rulers.

Al Qaeda and other Islamic fundamentalist The ideological struggle terror groups have made good use of modern technology, especially the internet, in prop- Whether one approaches counterterrorism agating their message (see Wright 2004: 40, from the military or the law enforcement 50). They were also successful in portraying model, it is clear that, to quote a phrase that both the U.S. invasion of Afghanistan and that borders on being a cliché, an ideological strug- of Iraq as a “war against Islam.” As a result, gle for hearts and minds is a key part of the Bruce Hoffman of Georgetown University, counterterrorism effort. It is, moreover, a an eminent authority on terrorism, has struggle that fundamentalist terror is wining. recently been quoted as saying that “Al- According to The 9/11 Commission Report Qaeda is not on the run. It is on the march” (2004: 50): “[T]he extreme Islamist version (2007: 72). of history blames the decline from Islam’s The most important ideological struggle, golden age on the rulers and people who however, is not likely to be that between al turned away from the true path of their Qaeda and the west. Rather, it is the strug- religion, thereby leaving Islam vulnerable to gle within Islam itself. At the present time encroaching foreign powers eager to steal their “those Muslim preachers with authenticity land, wealth and even their souls.” In the tend to be the street preachers–firebrands, modern context, the rulers who have turned who gain legitimacy by spewing hatred at both away from the true path of Islam include the their own regimes and the western powers rulers of Muslim countries, most especially the that support them” (Friedman 2006: A23, Col rulers of Saudi Arabia, where Mecca, the birth- 5). Unless and until more moderate voices place of Mohammed and Islam’s most holy within Islam succeed in getting their message city, is located. The primary encroaching across, al Qaeda’s recruitment of converts to foreign power is the United States, with its its cause is likely to continue to enjoy sub- placement of troops in Saudi Arabia (now stantial success.17 removed) being a particular source of outrage. In the view of bin Laden and al Qaeda, according to the 9/11 Commission Report Prevention of terrorism (2004: 51): Ideally, the goal of law enforcement and, America is responsible for all conflicts for that matter, the use of military force, is to involving Muslims. Thus, Americans are prevent international terrorism from being blamed when Israelis fight with Palestin- carried out. With the advent of the “new” ians, when Russians fight with Chechens, when Indians fight with Kashmiri Muslims, terrorist’s willingness to kill large numbers of and when the Philippine Government people, perhaps through the use of weapons fights ethnic Muslims in its Southern islands. of mass destruction, fulfillment of this goal America is also held responsible for the gov- has become of crucial importance. There are ernments of Muslim countries, derided by two primary methods for preventing the 287 9780415418768_4_019.qxd 26/11/2008 02:39PM Page 288

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commission of terrorism: (1) hardening of or unlawful interference with privacy, possible targets; and (2) use of intelligence family, home, or correspondence. The issue gathering by intelligence agents and of infor- recently came to a head in the United States mation resulting from investigations by law when it was revealed that surveillance was enforcement officials to intercept terrorists being conducted in secret by the National before they can commit their crimes. Security Agency and outside the Foreign Examples of the hardening of possible targets Intelligence Surveillance Act,18 which re- are the barricades that surround Congress and quires the government to seek approval from key governmental agencies in Washington, a special court to eavesdrop on Americans. D.C. and other primary possible targets such After substantial debate over the legality of this as financial institutions in New York City or practice, on August 5, 2007, President Bush nuclear facilities in various locations in the signed into law legislation that amends the United States. Screening of passengers and bag- Foreign Intelligence Surveillance Act and gage on civilian aircraft flights for weapons greatly expands the government’s ability to or bombs is another example. Special prob- eavesdrop international telephone calls and lems surround efforts to harden computer email messages of U.S. citizens without networks against attack because of their warrants.19 It allows intelligence agencies to vulnerability (see United States 1996: 5). intercept telephone calls and emails of foreign The gathering of intelligence and invest- terror suspects routed through the United igations for law enforcement purposes have States, without a warrant. The law remains both an international and domestic dimension. in effect for six months, at which point it will On a global basis, an important player is be revisited. Interpol, the international police organization. Interrogation of persons suspected of ter- According to Interpol: “[S]trict limits on rorism, either to prevent the commission intelligence sharing are hindering efforts by of future terrorist acts, or to ascertain the law enforcement agencies to understand whereabouts of perpetrators of terrorism, how the global threat is changing” (see since 9/11 has raised storms of controversy. Huban 2004: 5, col. 3). Revelations, for example, that the U.S. At the domestic level, in the United States, Department of Justice’s Office of Legal there has long been a separation between Counsel sent memoranda to the White intelligence gathering agencies, such as the House in January and August of 2002 Central Intelligence Agency, and investiga- (superseded in December of 2004)20 approv- tion for law enforcement purposes, such as by ing interrogation tactics that stopped just the Federal Bureau of Investigation. The short of a prisoner’s death and arguably con- 9/11 Commission Report (2004: 73–82) stituted torture precipitated a flurry of sharp emphasizes the failure of intelligence agents reactions from both ends of the political and law enforcement officials to share in- spectrum, rejecting the arguments set forth formation (“connect the dots”) that might in the memorandums. The Detainee Treat- have resulted in apprehending the 9/11 ment Act of 2005,21 while not expressly hijackers prior to the commission of their acts. referring to torture, does require that persons To resolve this problem, the Commission in the control of the Department of Defense (2004: 417) recommends that: “[I]nformation shall be subject only to interrogation tech- procedures should provide incentives for niques or treatment included in the U.S. Army sharing, to restore a better balance between Field Manual22 and states that “no individual security and shared knowledge.” in the custody or under physical control of In both intelligence gathering and invest- the United States Government shall be sub- igation for law enforcement purposes, there ject to cruel, inhuman, or degrading treatment has been concern that there not be arbitrary or punishment.”23 288 9780415418768_4_019.qxd 26/11/2008 02:39PM Page 289

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It is arguable that the U.S. Government to its authorities for prosecution. Normally, has violated provisions of the Convention the decision whether to extradite or prose- against Torture and Other Cruel, Inhuman, cute is in the sole discretion of the state party or Degrading Treatment or Punishment (the that has the accused in custody. The primary Torture Convention) through a program goal of the antiterrorist conventions is that know as “extraordinary rendition,” whereby persons accused of crimes covered by the con- an individual suspected of terrorism is trans- ventions be prosecuted before the national ferred from one state to another for purposes courts of states parties in accordance with of interrogation, detention, and possible procedures that safeguard their due process prosecution. A Canadian commission of rights. inquiry, for example, found that Maher Arar, It is not at all clear, however, that this goal a dual national of Canada and Syria, was is met with any degree of consistency. A major detained by U.S. officials as he changed part of the problem is the lack of adequate planes in New York on September 26, 2002, data on the extent of successful actions to pre- and subsequently deported to Syria where he vent terrorist acts and of successful prosecu- was tortured (see Zagaris 2006). Reportedly, tions of terrorists. (For further discussion of other governments also have engaged in this problem, see Murphy 2005: 465–8.) extraordinary renditions.24 Article 3(1) of the The crucial issue is the extent to which the Torture Convention provides: “No State global antiterrorist conventions have been or Party shall expel, return (‘refouler’) or extra- will be vigorously implemented. Conclusion dite a person to another State where there are of antiterrorist conventions is only the first step substantial grounds for believing that he in the process. Unfortunately, many states par- would be in danger of being subjected to ties seem to regard it as the last. But recent torture.” Condoleezza Rice, U.S. Secretary action by the U.N. Security Council has made of State has “repeatedly insisted that the U.S. it more difficult for states in general and states did not deliver prisoners to governments it parties in particular to persist in this attitude. believed would torture them” (Dinmore 2006: 3, col. 1). Security council resolutions 1373 and 1540 Prosecution and punishment U.N. Security Council Resolution 137325 If a suspected terrorist is apprehended “[c]alls upon all states” to take a number of abroad, the issue arises whether, and if so steps in cooperation with other states to where, he will be prosecuted. If the United combat terrorism.26 These steps include, States wishes to prosecute him, it will seek “intensifying and accelerating the exchange his return, either through extradition or of operational information,” becoming par- some other process of “rendition” such as ties to the relevant antiterrorist conventions exclusion, deportation, or, in extreme cases, and ensuring, “in conformity with interna- abduction. (For further discussion, see tional law,” that refugee status is not abused Gilbert 1998.) The so-called antiterrorism con- by terrorists, and that “claims of political ventions of the United Nations normally motivation are not recognized as grounds contain, as a basic provision, an “extradite for refusing requests for the extradition of or prosecute” requirement. That is, a state alleged terrorists.” party that apprehends a person who allegedly Significantly, to monitor implementation committed a terrorist act covered by the con- of Resolution 1373, the Council established vention must either extradite him to a state the Counter-Terrorism Committee (CTC) party seeking his extradition or submit his case and called on all states to report to the 289 9780415418768_4_019.qxd 26/11/2008 02:39PM Page 290

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committee – no later than 90 days after terrorist purposes, and prohibit assistance the date of adoption of the resolution – or financing of such activities. It obligated on the steps they have taken to implement States to adopt measures to prevent the pro- the resolution.27 The Council further liferation of WMD and their means of “[e]xpresse[d] its determination to take all delivery, including by accounting for necessary steps in order to ensure the full im- and physically protecting such items, establishing effective border controls and law plementation of this resolution, in accordance 28 enforcement measures. with its responsibilities under the Charter.” (Rosand 2005: 547) Similarly, Ambassador Jeremy Greenstock, the first chairman of the CTC, emphasized Following the lead of Resolution 1373 in the importance of implementing antiter- establishing the CTC, the Security Council rorist measures. According to Ambassador decided, in adopting Resolution 1540, to Greenstock (2002), prior to the resolution create a similar committee to monitor the “[governments] were already familiar with implementation of the latter Resolution.30 what needed to be done. But few had done Space limitations allow only a (very) brief it. Resolution 1373 drew on the language consideration of two other modern methods negotiated by all U.N. members in the of counterterrorism. twelve Conventions against terrorism, but also delivered a strong operational message: get going on effective measures now.” Although the record is somewhat mixed, Efforts to block the financing of Resolution 1373’s “strong operational mes- international terrorism sage” has been heard. According to Eric Rosand (2005: 548–9): “[P]artly as a result As a follow-up to Resolution 1373, which of Resolution 1373, and the work of its off- had as its primary focus the financing of inter- spring, the Counter-Terrorism Committee national terrorism, the Security Council 31 (‘CTC’), almost every country has taken adopted Resolution 1390, which directs steps to enhance its counter-terrorism members of the United Nations to freeze machinery, whether in the form of adopting without delay the financial assets or other anti-terrorism legislation, strengthening bor- economic resources of a lengthy list of indivi- der controls, becoming party to international duals, groups, undertakings and entities in the treaties related to terrorism, or becoming annex to the resolution. Moreover, report- proactive in denying safe-haven to terrorists edly, between September 2001 and March and their supporters.” 2002, $103.8 million in assets had been As noted by Rosand, in adopting Resolu- frozen on a worldwide basis, with roughly half tion 1540:29 of the funds connected to Osama bin Laden and al Qaeda. This amount pales, however, Again, faced with a global threat potentially in comparison with the between $500 billion emanating from both non-State actors as and $1 trillion reportedly laundered every year well as any State, the Council decided to and illustrates how difficult it is to dry up adopt a resolution that imposed a series of terrorist funding.32 far-reaching obligations on all States. It required them to refrain from providing support to non-State actors attempting to Civil suits manufactures, possess, transport, or use WMD [weapons of mass destruction] and their means of delivery. It further required Using civil lawsuits against terrorists, terror- them to prohibit in domestic law any such ist organizations, and states that sponsor ter- activities by non-State actors, particularly for rorism as a legal response to international 290 9780415418768_4_019.qxd 26/11/2008 02:39PM Page 291

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terrorism has only recently been undertaken especially, counterinsurgency and effective use and largely only in the United States. Tradi- of “soft power,” i.e. the ability to persuade tionally, the emphasis has been on punish- others of the appeal of one’s culture, values, ing terrorists with criminal penalties, not on and institutions,34 to meet the ideological holding them liable for their actions. More- onslaught of Islamic fundamentalism. over, civil litigation in the United States as An especially salient challenge of the new an alternative to criminal prosecution for terrorism is that it requires a major effort to the commission of international crimes or strike a proper balance between the need to egregious human rights violations is a highly safeguard national security, on the one hand, controversial subject. Subjecting foreign and to promote and protect human rights, on governments to such suits has been, if any- the other. Failure to prevent a future terror- thing, even more controversial. Barriers to suc- ist attack of the magnitude of 9/11 or greater cessful litigation in this area are formidable, would shift the balance alarmingly away and include, inter alia, resistance by the U.S. from the concern to protect human rights. government, limits on the lifting of im- It will also be necessary to make more effec- munity of foreign states under the Foreign tive use of international institutions, includ- Sovereign Immunities Act, difﬁculties in ing the much maligned United Nations, to collecting judgments in the United States and ensure the close international cooperation abroad, and possible hostile and retaliatory required to counter the globalization of ter- reaction on the part of foreign governments. ror. Recent reports that the United States and To the extent that actions against terrorist the United Nations are discussing a possible organizations are successful,33 plaintiffs may return of the United Nations to Iraq are a step have more success in collecting on their in the right direction. judgments because such organizations are Lastly, it will be a challenge not to over- likely to have substantial assets in the United react to the threat of the new terrorism. We States. But the debate continues on the must not give in to the temptation to create desirability and feasibility of civil suits as a a garrison state or interfere excessively with method of combating terrorism (see, e.g. international travel and business (see Buck and various essays in Moore 2004). Sevastopulo 2007: 1, col. 3).35

Conclusion Notes

This chapter has attempted to identify some 1 For a more extensive discussion of the obsta- of the major challenges of the new terrorism. cles to reaching agreement on a definition of terrorism, see Murphy 1990. Some recent Perhaps the overarching challenge is the writings on the issue of definition include Beres complexity of these challenges and the (1995); Byford (2002: 34); Tiefenbrun heated debate that has arisen as to how best (2003); Young (2006: 23). to meet them. The resolution of this debate 2 See, e.g. the Statement of Brigitte Mabandia, is crucially important because, unlike tradi- South Africa’s Minister for Justice and Constitutional Development, on July 5, 2007, tional terrorism, the new or modern terror- reported in AllAfrica, Inc., Africa News. In her ism arguably constitutes the major current statement, Ms. Mabandia reportedly said that threat to the national security of numerous the South Africa Government was of the view states, especially in the west. that the lack of consensus on the definition of Moreover, western governments, includ- terrorism in the U.N.’s Ad Hoc Committee established by the General Assembly ing that of the United States, are not particu- Resolution 51/210 of December 17, 1996 was larly adept in some of the methods required “problematic.” She further reportedly said to combat the new terrorism. These include, that with regard to the Comprehensive 291 9780415418768_4_019.qxd 26/11/2008 02:39PM Page 292

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Convention against Terrorism, South Africa 8 For various views on this issue, see Koh 2002. “supported the early finalization of this con- 9 Administration of George W. Bush (2001) vention but it was disappointing that the Military Order, Detention, Treatment, and Trial work of the U.N.’s Ad Hoc Committee was of Certain Non-Citizens in the War against deadlocked.” The reason for the deadlock, she Terrorism, 66 Fed. Reg. 57,833 (November said, “was a principled difference between states 16, 2001). on whether or not national liberation move- 10 Hamdan v. Rumsfeld (2006)126 S.Ct.2749. ments should be exempted from the scope 11 United States (2006b) Pub. L. No 109-366, 120 of the convention.” Stat. 2600. 3 The texts of the foregoing conventions may 12 According to Jack Goldsmith, the German most conveniently be found in United Interior Minister, Wolfgang Schauble, Nations 2001a. recently told the German magazine Der 4 Article 2 of the International Convention for Spiegel that: “The old categories no longer apply. the Suppression of Terrorist Bombing provides: The fight against international terrorism cannot be mastered by the classic methods of the Any person commits an offence within the police . . . We have to clarify whether our con- meaning of this Convention if that person stitutional state is sufficient for confronting the unlawfully and intentionally delivers, places, new threats” (see Goldsmith 2007: 11, col. 2). discharges or detonates an explosive or other lethal device in, into or against a place 13 See also Feldman 2002: 479: “More generally, of public use, a State or governmental facil- however, what can we say about the use and ity, a public transportation system or an infra- the meaning of the categories of crime and war structure facility: in this complicated situation . . . The key a. With the intent to cause death or seri- point . . . is surely that terror fits both categories ous bodily injury; or – and neither.” b. With the intent to cause extensive 14 For some of my views on the threat of com- destruction of such a place, facility or sys- puter attacks by terrorists, see Murphy 2002. tem, where such destruction results in or 15 See Department of the Army, Counterinsur- is likely to result in major economic loss. gency (December 2006). Because of high Article 2 (1)(b) of the International demand for the Manual, it also was published Convention for the Suppression of the by the University of Chicago Press, with a new Financing of Terrorism comes closer to being foreward by Lt. Colonel John A. Nagel and a general definition of terrorism: an introduction by Sarah Sewall (Department of the Army 2007). Any . . . act intended to cause death or seri- 16 Based on the testimony of Michael G. ous bodily injury to a civilian, or to any Mullen, nominee for chairman of the Joint person not taking an active part in the hos- Chiefs of Staff. tilities in a situation of armed conflict, when 17 For a provocative thesis that modern Islam is the purpose of such act, by its nature or an imperialist force, see Karsh 2006. context, is to intimidate a population, or to compel a Government or an international 18 United States Foreign Intelligence Surveillance Act organization to do or to abstain from doing (1978) 50 U.S.C. sections 1801–1863. any act. 19 See United States Protect America Act of 2007 (2007) Pub.L. No 110-55, 121 Stat. 552. For a variety of definitions of terrorism or 20 See Memorandum for Alberto R. Gonzales, terrorist acts, drawn from a variety of national Counsel to the President, and William J. and international sources, see van Schaack and Haynes II, General Counsel of the Depart- Slye 2007: 541–44. ment of Defense, Re: Application of Treaties 5 United States Federal Crime Code 18 U.S.C. sec- and Law to al Qaeda and Taliban Detainees tion 2331 (1). ( January 25, 2002), available at http://msn. 6 It is worth noting that in 1998 Osama bin Laden com/id/4999148/site/newsweek; Mem- told ABC News that “he made no distinction orandum for Alberto R. Gonzales, Counsel between American military and civilian targets, to the President, Re; Standards of Con- despite the fact that the Koran itself is explicit duct of Interrogation under 18 U.S.C. about the protections offered to civilians” (see Sections 2340–2340A (Dec. 30, 2004), Bergen 2002: 28). available at http://www.usdoj.gov/olc/ 7 For an especially thoughtful treatment of 18usc23402340a2.htm (superseding August 1, these distinct consequences, see Feldman 2002 opinion outlining applicable Standards of 2002: 466. Conduct).

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21 On December 30, 2005, President Bush 28 U.N. Security Council, S.C. Res. 1373, signed into law H.R., the Department of 2001b: section 8. Defense, Emergency Supplemental Appro- 29 U.N. Security Council, S.C. Res. 1540, priations to Address Hurricanes in the Gulf of U.N. SCOR, 59th Sess. 4956th mtg., U.N. Mexico, and Pandemic Influenza Act of 2006, Doc. S/1540 (2004b). Pub. L. No. 109-148. Title X of Division A 30 U.N. Security Council, S.C. Res. 1540, of the Act is the Detainee Treatment Act of 2004b: paragraph 6. 2005. 10 U.S.C. section 801 Note. 31 U.N. Security Council, S.C. Res. 1390, 57th 22 Detainee Treatment Act, 2005: section Sess., 4452d mtg., U.N. Doc. S/Res/4452 1002(a). (2002). 23 Detainee Treatment Act, 2005: section 32 For a recent consideration of the difficulties 1003(a). in controlling the financing of terrorism, see 24 Amnesty International has claimed Bosnia, Scott 2007. Germany, Italy, Macedonia, Sweden, 33 For a recent example of such a case, see Almog Turkey, and the United Kingdom have en- vs. Arab Bank, PLC, 471 F. Supp. 2d 257 gaged in such practices (see Dinmore 2006: 3, (E.D.N.Y. 2007). col. 1). 34 For a discussion of the possible uses of soft 25 U.N. Security Council, S.C. Res. 1373, power, see Nye, Jr. 2002. U.N. SCOR, 56th Sess. 4385th mtg., U.N. 35 Reporting on European objections to a new Doc. S/Res/1373 (2001b). U.S. visa law requiring travelers to the U.S. to 26 U.N. Security Council, S.C. Res. 1373, give U.S. authorities at least 48 hours’ notice 2001b: section 3, (a)–(g). of their plans to visit the country and to a U.S. 27 U.N. Security Council, S.C. Res. 1373, law requiring the screening of all air and sea 2001b: section 6. freight at foreign ports before being shipped to the U.S.

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20 Law and legitimacy: the World Trade Organization

Amrita Narlikar

In this chapter, I investigate the puzzle why increas- rent deadlocks that have plagued the negoti- ing legalization of the multilateral trading regime ations of the Doha Development Agenda. has not been accompanied by increasing legitimacy. In this chapter, I investigate the sources I argue that increasing legalization can in fact of the diminished legitimacy of the WTO trigger a process of de-legitimization if a legal sys- in comparison to the GATT’s. Both the tem upholds rules that are perceived to be poorly legalization and the legitimacy of the WTO negotiated. The paper presents a discussion of the are examined in the first section. I then concepts of legitimacy and legalization, analyzes argue in the second section that increasing the mechanisms whereby the processes of de- legalization can in fact trigger processes of de- legitimization have occurred, and finally suggests legitimization if a legal system upholds rules ways whereby the legitimacy of the World Trade that are perceived to be poorly negotiated. Organization might be reclaimed. I identify the mechanisms whereby these processes of de-legitimization have occurred. The creation of the World Trade Organ- In the third section, I go on to argue that if ization (WTO) in 1995 not only heralded the WTO is to reclaim its legitimacy, it will the replacement of the General Agreement have to move from processes of passive to on Tariffs and Trade (GATT) with a full- active legitimization, and suggest ways in fledged organization, but also the creation which this might be achieved. of a dispute settlement mechanism that was dramatically more powerful than the GATT’s. Increasing legalization of the multi- Increasing legalization, declining lateral trading regime, however, has not legitimacy? been accompanied by increasing legitimacy. Outside major ministerial level meetings of The multilateral trading regime presents me the WTO, demonstrations led by anti- with a high level of legalization, not least since globalization protestors are commonplace. the creation of the WTO and its dispute Inside the WTO too, the rumblings of dis- settlement mechanism. Yet what is legal content from members have grown louder, need not necessarily enjoy legitimacy. In this and are most patently manifest in the recur- section, I briefly discuss the phenomenon of

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increasing legalization of the WTO, and fur- mechanisms in the history of international ther illustrate that this legalization has not been law, the WTO’s increasing legalization has accompanied by increasing legitimacy of the not been accompanied by an increase in its organization. legitimacy. Judith Goldstein, et al. assess levels of legal- For this paper, I use a broad definition ization along three dimensions: obligation, of legitimacy, as provided by Mark C. precision, and delegation. They further de- Suchman (1995: 574): “Legitimacy is a gen- scribe the international trade regime as “usu- eralized perception or assumption that the ally accepted as one of the most legalized global actions of an entity are desirable, proper, or economic regimes” (Goldstein et al. 2000: appropriate within some socially constructed 11; also see Goldstein and Martin 2000). system of norms, values, beliefs, and defini- Particularly on the first two dimensions – tions.” Unpacking the concept into its vari- obligation and precision – evidence of ous components provides us with useful foci high legalization of the WTO (particularly against which the legitimacy of any institu- in comparison to the GATT) is easy to find. tion might be assessed. To this end, we turn Members of the WTO are legally bound to to Andrew Hurrell’s conceptualization of the honor their obligations, with fewer exemp- five dimensions of legitimacy (Hurrell 2005): tions than the GATT allowed.1 Its rules are precise in that they “unambiguously define 1 legitimacy as process and procedure or the conduct they require, authorize, or pro- “input legitimacy” scribe” (Abbott 2005: 17). These rules are listed 2 legitimacy as substantive values in detail in the agreements of the WTO that 3 legitimacy and its links to specialized and number over 550 pages of printed text. specialist knowledge On the third dimension – delegation – the 4 legitimacy as effectiveness or “output case for high levels of legalization is less legitimacy” straightforward. The WTO retains the 5 legitimacy as giving reasons and member-driven nature of the GATT, and persuasion. there is no delegation of powers to a secretariat or an alternative governing body that On four of the five dimensions, the legitimacy makes the rules. The onus of negotiating of the WTO is under challenge. Before I dis- and implementing agreements lies with the cuss the mechanisms whereby the legitimacy members themselves. But the WTO does of the WTO has declined, a brief application show a much higher level of delegation of of these five dimensions of legitimacy to the powers as far as the interpretation and WTO follows. enforcement of its agreements are con- The “input legitimacy”3 of the WTO has cerned. In the WTO (unlike the GATT), the come under challenge from not just the anti- findings of the dispute settlement panels globalization protestors outside but from need consensus to be overruled, thereby member states within. Non-governmental facilitating a greater automaticity of the organizations attack the WTO on the WTO’s dispute settlement mechanism and the grounds that its system of legalized and enforceability of the rules of the organization. intrusive rules is negotiated by states rather than The successes of the dispute settlement the people who are directly affected by these mechanism of the WTO are borne out by the rules and yet have little say in their making. sheer number of cases – 369 between Within the WTO, member governments January 2005 and September 2007 – that particularly from developing countries have have been filed under it.2 And yet, despite complained about the lack of transparency having one of the busiest dispute settlement in the proceedings of the WTO and further

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constraints on their participation. The These disagreements are manifest in the dissatisfaction of both sets of constituencies debates over the mandate of the WTO (for came to the fore in 1999 at the Seattle Min- instance, the controversy surrounding the isterial Conference. It is worth noting that “Singapore issues”). Neither are these con- WTO has attempted to address both sets of troversies limited to the expanding remit of concerns. Its outreach to NGOs has ex- the organization; some scholars point to the panded significantly, as have access points costs that multilateral trade liberalization that NGOs now enjoy into the organization entails in terms of the policy space of devel- (for instance, through amicus curiae briefs that oping countries.4 they can submit in disputes, and through the The third dimension of legitimacy – the process of accreditation whereby they can basis that the WTO-led trade liberalization attend ministerial meetings). Additionally, enjoys in “specialized and specialist know- improvements in the participation of devel- ledge” (Hurrell 2005: 22) – is perhaps the oping countries in the organization are most least contested of the five. Note that Hurrell patently manifest in the transformation of takes the opposite view, and argues, “As with the old GATT “Quad” (which comprised claims to legitimacy based on technocratic Canada, the EU, Japan and the U.S.), into a knowledge (for example, in the cases of the new core group of countries comprising IMF or the WTO), such arguments have suf- Brazil and India along with the EU and the fered heavily in the face of both intelligence U.S. The legitimacy of the WTO does not failures, manifestly insufficient knowledge of seem to have improved, however. NGOs the countries under analysis, and the polit- continue to fault the WTO for its chain ical manipulation of such intelligence.” This of delegation being far too removed from may have been true of the GATT in the 1970s, people who are affected by it, and smaller particularly when the developing world developing countries continue to claim argued its case using a different epistemic alter- marginalization from the process. native based on import-substituting industri- The second dimension of legitimacy per- alization, resulting in the call for the New tains to “substantive values.” It is defined by International Economic Order in the UNC- Andrew Hurrell in the following terms: “In TAD. Today, few developing countries order for an institution or political arrange- would appeal to such arguments, while most ment to be legitimate, its core principles need scholars would agree that trade is a necessary to be justifiable on the basis of shared goals (although not sufficient) condition for devel- and values.” (Hurrell 2005: 20) At one level, opment.5 The WTO too seems to take a sim- few would dispute the goals of the WTO as ilar view, with trade as not the panacea for stated in the preamble to the Agreement all problems, but as only one of the condi- establishing the World Trade Organization, tions necessary for promoting development. which include raising standards of living, full This recognition is visible not only in the Doha employment, expansion in the production of Ministerial Declaration, but also in the Aid and trade in goods and services, sustainable for Trade agenda that attaches considerable development, and attention to the needs importance to capacity building (including of developing countries and especially least productive capacity and economic infras- developed countries (LDCs). However, tructure) in developing countries.6 there exists disagreement on how these The fourth dimension of legitimacy – shared goals are to be implemented, exactly output legitimacy or effectiveness – is under which areas the agreements of the WTO severe challenge. I find evidence of this in should extend to achieve these sometimes the increasing disengagement of politicians in inconsistent goals, and exactly what the rules the developed and developing worlds, and the negotiated to these ends should comprise. turn away from multilateral trade agreements 296 9780415418768_4_020.qxd 26/11/2008 02:39PM Page 297

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to regional and bilateral ones. This disen- already mentioned in the context of input gagement is not surprising given the recur- legitimacy). And yet, public support for the rence of deadlocks and missed deadlines in the institutions of the WTO is low: worldwide, DDA: The short electoral cycles of politicians respondents to a poll expressed concerns are not in synch with the long negotiating about the impact of trade on environment cycles of trade, and the WTO does not seem and labor, and further showed considerable to be coming up with the promised deliver- variation on whether their country should ables in time. It is worth recalling that the comply with any WTO rulings that might be DDA was due for completion in January 2005. brought against it.9 Even as late as mid-2008, an agreement was nowhere in sight.7 It is worth noting that the goal of input legitimacy is often at odds with The mechanisms of that out of output legitimacy: improving the de-legitimization transparency of decision-making processes can generate costs in terms of the effective- Increasing legalization, in the case of the ness of decision making (especially when the WTO, has not been accompanied by in- organization is governed by consensus-based creasing legitimacy of the organization. At rule making wherein all 152 members can, first glance, this observed negative relation- in principle, cast a veto). ship between legalization and legitimization Finally, even if all the legitimacy concerns is counterintuitive. One would expect that raised in the previous paragraphs were the increasing precision of rules, and their resolved and the legitimacy of the organiza- greater enforceability via delegation to dispute tion were established indisputably in a nor- settlement panels, is likely to improve the legit- mative sense, it would still not ensure the imacy of the organization due to the rising legitimacy of the institution in a sociological importance of due process (covering certain sense, i.e. when “it is widely believed to have aspects of input legitimacy), more efficient the right to rule.”8 To achieve legitimacy enforcement mechanisms (covering certain in the latter sense requires giving reasons, aspects of output legitimacy). The reasons why persuasion, and justification; this notion of this is not the case are twofold – domestic and legitimacy is related in part to the notion international. of input legitimacy insofar as it attempts to The first relates to the impact that improve the internal and external account- legalization has on domestic support for ability of the organization. Internally, given trade liberalization. Judith Goldstein and Lisa the member-driven character of the WTO and Martin (2005) point to three important its role as a bargaining forum, such justifi- effects of legalization: cation is perhaps less necessary than it would be in other organizations with higher 1 Greater legalization, which results in degrees of delegation. Externally, however, the availability of greater information the role of such reason giving is key: The about the distributional effects of WTO needs to justify what it does, first and agreements, increases the incentives of foremost because of the enforceability of its antitrade groups to mobilize and deters rules. It is true that the WTO’s engagement the conclusion of cooperative deals. with different constituencies has improved 2 Exporter groups targeted with precise dramatically, especially since the Seattle threats of retaliation are more motivated Ministerial conference of 1999. This engage- to organize in favor of the trade regime ment takes the form of its Public Forum, and than those facing imprecise threats. various online mechanisms that give voice to 3 A stronger enforcement mechanism non-state actors (in addition to mechanisms with penalties and reduced flexibility 297 9780415418768_4_020.qxd 26/11/2008 02:39PM Page 298

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may further undermine domestic sup- Developing countries sat on the margins of port for an open trade policy. the GATT; with certain exceptions like Brazil and India, most were not privy to the Using these mechanisms, they argue: Green Room meetings where consensus was “Evidence suggests that the effects of legal- shaped. The bargain worked, nonetheless. ization may not be as glowing as proponents Even while sitting on the periphery, devel- argue. First, legalization may be one reason oping countries managed to free ride on the for the increased attention and activity of anti- concessions that were exchanged by the trade groups . . . Second, some evidence larger countries via the most favored nation suggests that changes in WTO rules under- status that they enjoyed qua contracting par- mine the incentive for export groups to ties to the GATT. mobilize in defense of free trade. In that the Today, the WTO comprises 152 members. WTO makes retaliation more difficult, both The expanded reach of the organization into because of changes in the rules on safeguard behind-the-border measures, the Single provisions and because of the process of Undertaking, and the enforceability of its dispute resolution, we expect exporters to rules mean that developing countries can no mobilize less often to balance the action of longer afford to be sleeping partners in the rent-seeking import-competing groups” trade negotiations. However, it is important (Goldstein and Martin 2000). In other to bear in mind that even though the mem- words, legalization changes the incentives for bership and mandate of the WTO have domestic groups, and may well result in expanded significantly, its decision-making declining domestic support for international processes are still closely related to that of trade. But the reason for the declining legit- the GATT. Besides other similarities to the imacy of the WTO does not work at the GATT, decisions in the WTO are arrived at domestic level alone. through consensus, which is defined in the At the interstate level, the WTO is caught following terms: “if no Member, present at between a rather cumbersome rule-making the meeting when the decision is taken, for- system (which it inherited from the GATT), mally objects to the proposed decision.”10 and an increasingly legalized rule enforcement Consensus is extremely difficult to reach in system. Herein lies the second reason for the the WTO, and not only because each one of declining legitimacy of the WTO: increasing its 152 members may, at least theoretically, legalization has not been accompanied by a exercise a veto and hold up an agreement. commensurate ability or authority of the Rather, it is also because many developing organization to negotiate agreements. Nego- countries, acknowledging the new imperatives tiations are perceived to be unfair or ineffici- generated by the very existence of the ent (or both in certain instances) by different WTO, have demonstrated a greater procliv- negotiating parties and their key constituen- ity to participate much more actively and also cies. The discrepancy between its rule-making exercise their potential veto power.11 and rule enforcement functions heightens Several factors – new opportunities and also the legitimacy deficit of the WTO. new challenges – have contributed to the There are three mechanisms that explain improved participation of developing coun- why the WTO’s negotiation processes have tries (Barton et al. 2006; Gruber 2000; begun to unravel, particularly when compared Narlikar 2003; Odell 2006). At least some against the days of the GATT. The first and credit must go to institutional reform within foremost has to do with the rise in the the WTO, which has responded to criticism expanded and increasingly active membership about its lack of internal transparency in the of the organization. The GATT started out late 1990s by improving the accessibility and with 23 members and functioned like a club. openness of small-group consultations and also 298 9780415418768_4_020.qxd 26/11/2008 02:39PM Page 299

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providing technical assistance and capacity- Third, the reach of the WTO goes con- building for weaker members.12 However, siderably further than the GATT in terms with such a large number of members now of the coverage of its rules. The GATT dealt at the negotiating table, and much more will- primarily with trade in goods, with other ing and able to bargain, this transparency behind-the-border issues such as standards (e.g. has come at the price of efficiency. One sanitary and phytosanitary barriers to trade) significant cost of this inefficiency is the entering its purview only through plurilateral time it now takes to reach any agreement – agreements that members could pick and the recurrence of deadlock in the Doha choose to sign on to or not. The WTO is negotiations provides an indication of this. different. When the WTO was created, all Declining political commitment to the multi- members agreed to sign onto the entire lateral process and the turn to regional and package of agreements via the Single Under- bilateral alternatives – by developed and taking, even when these agreements ex- developing countries alike – are reactions to tended to rules relating to TRIPs, TRIMs, these costs. A vicious cycle ensues: As the avail- services, sanitary and phytosanitary barriers able alternatives expand, the commitment of to trade, technical barriers to trade, and countries to the long-drawn multilateral so forth. Perhaps this expansion could have process declines further. enjoyed greater legitimacy had there existed Second, and closely related to the problem a consensus on it among members, or if it of growing numbers, is the changing balance could have been clearly justified through of power in the core of the WTO. Pre- the existing agreements, or if there existed a viously, consensus was shaped predomin- clear epistemic consensus on it, or even if antly by the “Quad” group of industrialized members eventually came to recognize the and high-income countries comprising virtues and concrete gains from an agreement Canada, the EU, Japan, and the U.S. The that they might have resisted in the negotia- Doha negotiations today, and perhaps tion process. However, the expansion in the indicative of the opening up of the process mandate of the WTO has seldom been of rule making to the developing world, are driven by any of these legitimizing mech- conducted among a new “Group of Four”. anisms.13 Most negotiators recognize the Brazil, the EU, India, and the U.S. form politics that drives the evolving mandate of the core of WTO decision making. The the WTO; at least a few negotiators from presence of Brazil and India on this “New the developing world see it driven predom- Quad” makes it significantly more diverse inantly by power politics, where the areas than the old one, and it has been expectedly of interest for the powerful make it onto difficult for even this small core group to the agenda while those of the weak are arrive at the beginnings of a consensus (let either bypassed completely or enter only in alone sell it to the rest of the membership). name rather than generate actual results.14 The Admittedly, this small group is more repres- failed promises of the Uruguay Round lend entative of the economic and political real- further credence to the power politics ities today than the old “Quad” would have interpretation.15 been, and reflects a commendable democra- It is partly as a reaction to these criticisms tization in the workings of the WTO. But that the current round of trade negotiations the “New Quad” lacks the efficiency of the has taken the shape of a development round. old one due to its diversity. Equally, it has also But even these attempts to put development been challenged on the grounds of its repres- at the forefront have left most major con- entativeness and legitimacy, particularly by stituencies dissatisfied. With the removal of the LDCs who do not have a direct voice in the Singapore issues from the agenda and the this group. primary focus on development issues, the zone 299 9780415418768_4_020.qxd 27/11/2008 11:34 AM Page 300

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of agreement has shrunk as far as developed have only recently begun to reap the payoffs countries are concerned. For developing of learning to negotiate more effectively, countries – be they the middle-income once again risk marginalization if rules are developing countries or LDCs – the current made via the Appellate Body rather than negotiations focus insufficiently on develop- negotiated. ment. These countries are thus even more reluctant to make any concessions, thereby reducing the commitment of the developed Reclaiming legitimacy: the way world to the multilateral trade negotiations forward even further. The rules that the WTO embodies, and the As argued in the previous section, the new ones that are currently under negotia- legitimacy deficit of the WTO lies in the tion, are contested in terms of substance or growing divergence between its flailing outcomes, as well as process. This question- negotiation processes and its legalized dispute ing of outcomes is reflected, for instance, in settlement mechanism. Reclaiming this the criticism of the “Bum Deal” of the Uru- legitimacy is not easy, but it is critical if the guay Round, or the substance of the current multilateral trading system (and the many gains negotiations. The process leading to these that it has generated for countries rich and outcomes is challenged from all sides – by poor) is to survive. smaller developing countries for still failing Marc Suchman provides a useful discussion to meet some simple standards of democracy of legitimacy as seeking passive acquiescence and internal transparency, by NGOs for still or active support, or legitimacy as “cognitive failing to meet standards of accountability and taken-for-grantedness” or legitimacy as external transparency, and by the developed “evaluative approval.” He writes: “To avoid countries for failing to meet minimal standards questioning, an organization need only of efficiency and effectiveness. And it is these ‘make sense’. To mobilize affirmative com- rules, which are deeply contested in terms of mitments, however, it must also ‘have value’ both process and substance, that the WTO – either substantively, or as a crucial safeguard implements via the dispute settlement against impending non-sense” (Suchman mechanism. 1995: 575). Particularly in the face of failed The problem lies not only in the fact that promises of the past and availability of the DSB implements and enforces rules that regional and bilateral alternatives, the WTO are under challenge. Rather, the Appellate needs to signal its value for its states (and their Body has a tendency to engage in consider- people), and thus seek active legitimization. able judicial interpretation and activism. Most challenges to legitimacy “ultimately This creates a backdoor entry for new legis- rest on failures of meaning: Audiences begin lation on which there is no consensus among to suspect that putatively desirable outputs are trade negotiators. Rules developed in this hazards, that putatively efficacious proced- manner are likely to undermine the legitimacy ures are tricks, or that putatively genuine of the organization even further (Barton structures are facades” (Suchman 1995: 597). et al. 2006). Besides principled objections to The first step towards reclaiming the legiti- this tendency to litigate when states fail to macy of the WTO would be to address the negotiate, there is also the practical consid- question of its function – what is the role of eration that most developing countries do not the WTO today, and why should it be have the resources to use the DSM effectively regarded as the institution most suited to serve nor the strength to retaliate even if the DSB this end? This is not just a second-order mat- rules in their favor (Busch and Reinhardt ter of reason giving and persuasion catered 2003). As such, developing countries, which to audiences ill informed about the WTO 300 9780415418768_4_020.qxd 26/11/2008 02:39PM Page 301

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(though a strategy of re-legitimization would Types of solution to balance these difficult and need to incorporate such tasks as well). divergent goals lie beyond the scope of this Rather, to implement this strategy successfully, chapter. But negotiators will need to arrive negotiators within the WTO, along with the at such a balance, and will also need to be able assistance of its Secretariat and experts out- to justify it by providing reasons to con- side, would need to come up with principles stituencies within and outside the WTO. that would define the mandate of the WTO Addressing the limitations of its rule making and also anticipate its future development.16 would provide the key to restoring the This process would need to be intellectu- balance between the legislative and judicial ally rigorous and also politically acceptable. functions of the WTO, and thereby get to the Negotiations based on a mandate clearly heart of the legitimacy deficit that afflicts the established through agreed principles would organization today. significantly improve the efficiency and per- Third, it is not only the legislative end of ceived fairness of the everyday workings of the the multilateral trading system that needs to organization. It would also help deal with the be reformed; dispute settlement also needs to problem of unrealistic expectations.17 be rethought. Here the core question lies in Rethinking the mandate and functions of the costs and benefits of legalization, suggest- the organization through internal and exter- ing two, sometimes diverging solutions. nal engagement would improve the legitimacy First, some flexibility could be built back into of the WTO along all the five dimensions dis- the WTO’s DSM, through measures that cussed in the first section. Input legitimacy would include building in constitutional would be improved through the consultative restrictions on the power of the Appellate process; substantive legitimacy would be Body. Such a solution would suggest some improved through a precise and principled dilution in power of the DSM. Not entirely definition of the mandate and its purpose; the in contradiction to this though, certain epistemic consensus that underlies the nego- aspects of the DSM could be strengthened, tiations would be reinforced (after recon- particularly in terms of improving its access sideration and revision if necessary); output for weaker countries that lack resources for legitimacy would be greatly enhanced with a its use or retaliatory power. Any reform of clearer definition of the WTO’s functions the DSM would have to be carried out hand against which it could be evaluated and held in hand with the first two sets of reform of explicitly accountable; finally, simply a re- mandate and process. thinking along such lines would signal the Finally, even a program of far reaching willingness to work towards the reclaiming reform would be unsuccessful if it were not of its legitimacy. seen to be improving the fairness and Second, negotiation processes, i.e. the efficiency of the system. To ensure the legit- legislative function of the WTO would need imacy of the WTO in a sociological sense, to be directly addressed in terms of both constant engagement would be necessary on input legitimacy and output legitimacy. the part of the negotiators and the Secretariat Admittedly, reform measures to improve with politicians, NGOs, and the private sec- input legitimacy can undermine those dir- tor. This would include giving of reasons ected to improving output legitimacy. For regarding the functions of the multilateral trad- instance, greater transparency in the pro- ing system, justification of its mandate, and ceedings and more effective voice for devel- demonstration of the fairness of its process and oping countries has improved the input outcomes. Equally however, and perhaps legitimacy of the organization, but it has also even prior to reform, more awareness needs undermined its effectiveness by making it to be created as regards the merits of multi- much more difficult to arrive at an agreement. lateralism and the benefits that developed and 301 9780415418768_4_020.qxd 26/11/2008 02:39PM Page 302

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developing countries have reaped from it over 11 This veto power has manifested itself in dif- the past 60 years.18 ferent forms and on different occasions. The There may be little overlap between the Africa group, for instance, threatened to walk out of the Seattle Ministerial Conference in legal and the legitimate. But the law and legit- 1999; several members of the WTO includ- imacy can be used to reinforce each other, ing the EU, the Africa Group, South Korea and build a system that is fairer and also more and Japan refused to make any concessions on effective. Balancing the legislative and legal the Singapore issues at the Cancun Ministerial functions of the WTO will provide initial steps in 2003 thereby providing the immediate cause for the failure to reach agreement there. in this direction. 12 On the various institutional reforms taken on within the organization, see Narlikar 2005. 13 Recall, for instance, the controversy that sur- Notes rounded attempts to include services, TRIPs, and TRIMs in the Uruguay Round, or the failed attempts to include the Singapore issues 1 The expiry of the Protocol of Provisional in the DDA. For further details, see Narlikar Application or the “grandfather clause” is an 2005. Specifically on the issue of the mandate, example of the increased obligations that see Evenett 2007. members are required to take on under the 14 For some interesting anecdotes on this, see WTO. The Protocol of Provision Applica- Jawara and Kwa 2003. tion allowed contracting parties to exempt 15 On the problems of implementation that themselves from GATT rules if they were emerged after the completion of the Uruguay inconsistent with pre-existing domestic Round, see Narlikar and Odell 2006. legislation; the members of the WTO are no 16 The Warwick Commission Report (2007) longer allowed to appeal to grandfathering takes an important step in this direction. rights. 17 Sylvia Ostry 2001 argues persuasively that 2 www.wto.org. Also see Chapter 2 of the “overzealous proponents of ‘free trade’ or Warwick Commission Report (2007). globalization unleashed unrealistic expectations. 3 On “input legitimacy” and “output legitimacy,” If you promise but can’t deliver Nirvana it’s see Scharpf 1999. bound to evoke cries of Armageddon from 4 For instance, see Wade 2006. the disapproving and the disappointed.” The 5 For an accessible analysis to these debates, see same argument could be made about the Chapter 3, Warwick Commission Report attempt to couch the current trade negotiations 2007. entirely within a development framework, 6 www.wto.org. without any clarification on what this means 7 Warwick Commission Report 2007. or what countries might expect from it. 8 On legitimacy in a normative versus sociological 18 Such a strategy would fit with Suchman’s sense, see Buchanan and Keohane 2006. “Don’t panic” recommendation; drawing on 9 http://www.worldpublicopinion.org/pipa/ the work of Ashforth and Gibbs, he writes: pdf/apr07/CCGA+_GlobTrade_article.pdf. “Delegitimated organizations that seek too Also see Scheve and Slaughter 2007. frantically to re-establish legitimacy may dull 10 See the Agreement establishing the WTO: the very tools that, if used with patience and http://www.wto.org/english/docs_e/legal_e/ restraint, might save them” Suchman (1995: 04-wto.doc. 599).

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21 Attainments, eclipses and disciplinary renewal in international human rights law: a critical overview

Obiora Chinedu Okafor

This chapter provides a critical overview of the con- to) the human rights cold. This is why the discipline temporary state of the international human rights is in danger of being unable to achieve real sustained law discipline. It does so chiefly through the expli- transformation in our time. cation of patterns revealed and insights gained by training three kinds of conceptual lens on the texts, discourses, contexts, and praxis of the discipline. Introduction These lenses are devoted to the capture and assessment of the attainments that have uplifted the dis- This chapter provides a critical overview of cipline, the eclipses that trouble it, and the bouts the contemporary state of the international of disciplinary renewal that it has experienced from human rights law discipline. It does so time to time as it struggles with the possibility chiefly through the explication of patterns or otherwise of enduring self-transformation. The revealed and insights gained by training three chapter maps and examines, albeit in a measured kinds of conceptual lens on the texts, dis- way, the attainments that have advanced the discourses, contexts, and praxis of the discipline. cipline to date; teases out and explicates most of These lenses are devoted to the capture and the eclipses ( full or partial) that have inhibited the assessment of the attainments that have up- discipline’s optimization; explores what is referred lifted the discipline, the eclipses that trouble to in the paper as the dualistic deep structure of it, and the bouts of disciplinary renewal that human rights, and the relationship of this deep it has experienced from time to time as it structure to the characteristics and ultimate utility struggles with the possibility or otherwise of (or otherwise) of the discipline’s constant drive to enduring self-transformation. renew itself. In the end, it is suggested that while In order to develop systematically the human rights’ renewal has, of course, always been main argument that is made in it, the chap- possible, even the entailed ebb and flow of the zone ter is divided into three main sections. or band of international human rights protection, the Each section corresponds to one of the three observable expansion and contraction of the borders organizing sub-themes of the chapter: that is, of the living human rights law, and the mobility of attainments, eclipses, and the question of the the boundary of protection that human rights offers, (im)possibility of disciplinary renewal. These does not erase entirely the margin that is too often three organizing sub-themes are considered inhabited by those who have been left in (nay, shifted in the chronological order in which they have 303 9780415418768_4_021.qxd 26/11/2008 02:40PM Page 304

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been stated here. The second section maps and the sole approved discourse of resistance examines, albeit in a measured way, the (Rajagopal 2003: 165). And if Amartya Sen attainments that have advanced the discipline is right in declaring that human rights are to date. In the third section, most of the full quintessentially ethical articulations (Sen or partial eclipses that have inhibited the dis- 2004: 321), Makau Mutua’s now famous cipline’s optimalization are teased out in an conclusion that these norms now sit on a extensive way. The last section concludes the “moral plateau” is as revealing in this respect chapter by pondering what is referred to as (Mutua 2002: 40). So is Louis Henkin’s the dualistic deep structure of the discipline oft cited description of the respectability and its relationship to the characteristics, and that international human rights norms have ultimate utility or otherwise, of the discipline’s attained in our time in terms of its constitu- constant drive to renew. tion of “the age of rights” (Henkin 1990: 26– Due to space constraints, not every 9). For a set of ideas, texts and praxis that important attainment or eclipse could be dis- had endured centuries of excessive discursive cussed in this chapter. skepticism, this ascent to the dizzying heights of widespread rhetorical acclaim is a signiﬁcant – if in itself insufﬁcient – attain- Attainments ment; not least because of the “rights consciousness” (in the formal sense) that it has Up on the “moral plateau” 1 helped to highlight and foreground.

As praxis, human rights have come a very long Rights consciousness way from the time when Jeremy Bentham felt able to declare that they were nothing more At the very least, a certain consciousness about than “rhetorical nonsense – nonsense upon the potential utility of much of the formal stilts” (Bowring 1843: 501). Even as late as corpus of international human rights law for 1937, the principal international law authors the prosecution of their various emancipatory still denied that there were any such thing as or repressive agendas seems to have emerged international human rights law (Buergenthal among almost all elite classes almost every- 2006: 783–5). Today, despite persisting where in the world (Robinson 2003). This legitimate doubts about the coherence of the exponential rise in the circulation of a rel- conceptual and practical enterprises that have atively elite version of human rights law been spawned by the introduction of this con- discourse has led Michael Ignatieff to iden- cept into social life (Sen 2004: 316), few, tify the post-1945 generation as one that cur- if any, serious commentators can refer so dis- rently encounters a signiﬁcantly heightened missively either to the concept of human rights “juridical revolution” (Ignatieff 2001: vii). To or to the sub-discipline of international law paraphrase Cassel, many respected scholars that is devoted to its study. This is so much have claimed – with some justiﬁcation – that so that even its most articulate critics have there has been a triumph of rights conscious- recognized the dizzying heights which it has ness; one that has both contributed to and stim- attained in our time. For example, Upendra ulated an explosion in international human Baxi has gone as far as arguing that as con- rights law (Cassel 2004: paras 40–4). tingent, contradictory and contested as international human rights norms too often are, Standard setting and vindication they “remain perhaps all that we have to inter- mechanisms rogate the barbarism of power” (Baxi 2006: 4). This, in Balakrishnan Rajagopal’s words, Most knowledgeable observers of the dis- means that human rights discourse is now cipline will easily agree that international 304 9780415418768_4_021.qxd 26/11/2008 02:40PM Page 305

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human rights law has achieved considerable, rights by non-state actors (such as local “pri- if narrow ranging and insufficient, success vate” actors, multinational corporations and in the standard-setting and mechanism- the international financial institutions), the constituting areas. In the last five or six Human Rights Committee has of recent decades, literarily hundreds of human rights paid some attention to the need for greater documents of varying legal force have been scrutiny of the activities of so-called private adopted, and scores of institutional mechanisms actors in relation to activities that affect the established (Buergenthal 2006). Before and enjoyment of human rights (Alston 2005b: after the adoption of the Universal Declara- 769–70). The committee now requires states tion of Human Rights in 1948, the corpus to ensure as much as they can that these non- of international human rights law has been state actors do not impair the enjoyment immensely expanded in size and range to of human rights within their territories.2 include a large number of basically global (usu- However, as Alston has correctly lamented, ally U.N.) human rights treaties and soft law nothing in the committee’s work has so far documents. This process has also resulted in suggested that in the absence of effective action the adoption and entry into force of the by states in the area of reining in these non- regional human rights treaties and in the estab- state actors, international human rights law lishment of the corresponding monitoring imposes direct obligations on private actors such bodies. The dismantling of the United as private healthcare providers or multinational Nations Commission on Human Rights and corporations. Needless to say therefore, and its replacement with a new United Nations as significant as they are in relative terms, the Human Rights Council is only the latest event attainments of the sub-discipline in this area in a long list of post-1945 developments in have not been all that robust. the institutional expansion of the international human rights area (Lauren 2007: 335–43). Correspondence

Focusing beyond the state Critical as he is of the tendency of international human rights law to, in part, encode It is indisputable that, after decades of and reflect global power asymmetries, and neglect international human rights law is to exclude the subordinated from its inner beginning to pay significantly more attention driving rooms, Baxi has correctly recognized to non-state actor human rights violators that: than it historically did. Although, as we shall see in the third section, this incipient turn Through myriad struggles and movements away from state centrism has been painfully throughout the world human rights has slow and inadequate (Agbakwa 2003; Baxi become an arena of transformative polit- 2006), it has been steady nevertheless. This ical practice that disorients, destabilizes, is not, of course, to suggest that international and, at times, even helps destroy deeply human rights law has in fact captured non- unjust concentrations of political, social, state actor violations in an adequate way, but economic, and technological power.3 merely to point out that given the extent of the prior neglect, it is a relatively significant How does international human rights law, a attainment for it to begin to focus on the issue law which applies in a largely sheriff-less globe, at all. achieve this mild feat? In a noticeable, if cautious, departure from As I have argued elsewhere (Okafor the historical tendency among the main- 2007), the principal way in which international stream authors of the sub-discipline to human rights law has diffused and percolated ignore the rampant violations of human around the world is through its remarkable 305 9780415418768_4_021.qxd 26/11/2008 02:40PM Page 306

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capacity to induce something I have referred influenced by the African Charter on to as correspondence. This occurs both within Human and Peoples’ Rights4 (Okafor 2007: and way beyond the compliance-focused 157–65). In both examples, the desired radar, so much so that those who train their effect occurred not because of state compli- lenses exclusively on the incidence of state ance as such but more or less in its absence. compliance with international human rights Yet their impact was most significant in each law tend to miss far too many of its signi- case. What is more, in regard to both coun- ficant effects. Thus, were one to be largely tries, a wealth of similar evidence exists. concerned with the capture and measurement In both states, a process of transjudicial com- of state compliance, one would be likely to munication that was brokered and facilitated by see a far less developed, intricate, and robust local activist forces (including varying arrays picture of the attainments of international of NGOs, women’s groups, activist judges, human rights law than would be revealed were journalists, and so on) enabled African system one to adopt a more holistic focus on the gen- norms to percolate (beyond the state com- eration of correspondence by international pliance radar) into local executive, legislative human rights praxis. This is, of course, not and judicial decision-making processes in a way an argument against the measurement of that produced a range of impact on state and state compliance as such. Rather, what is being society alike. Were one to focus on Nigeria’s suggested here is that the state compliance or South Africa’s formal and direct com- measure too often produces too limited a pliance with the decisions of the African picture of the actual concrete workings and Commission on Human and Peoples’ attainments of international human rights Rights, one would not tease out as rich and law. extensive a picture of the attainment of this An example of the way in which a key institution of international human rights broader focus on correspondence tends to pro- law. The resulting picture would be incom- duce a more holistic and thus more accurate plete, and as such, inaccurate on the whole. picture of the operations and effects of inter- As such, it is only logical to suggest that a national human rights law is the way in full appreciation of international human which the African human rights system, rights law’s attainments is not really possible which is widely regarded in the literature without the aid of a correspondence-focused as weak (Steiner and Alston 2000: 920), and set of tools. It is also in this way that both the with whose views states do not comply that promise and limits of the sub-discipline can often (Viljoen and Louw 2007), has never- be more accurately mapped and analyzed. theless helped induce far stronger correspondence within a significant number of African states, especially Nigeria and South Africa (Okafor Full and partial eclipses 2007: 91–154, 155–219). A couple of examples from both countries will serve to con- Origins and development of cretize and illustrate this point. In Nigeria, conceptions of human rights a group of ethnic minority rights activists escaped execution at the hands of a military The historiography of human rights has been regime in part as a result of the influence of a site of intense and continuing contestation. a decision of the African Commission on a While all too many of the dominant western local high court judge (Okafor 2007: 98– accounts of the origins of human rights 101). In South Africa, some recent deci- locate its origins exclusively within the west sions of the Constitutional Court, such as the (for example, Afshari 2007: 3–4; Donnelly Kaunda and Bhe cases have been significantly 1995: 246–7; Howard 1993: 315; Ignatieff

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2001: 4; Schulz 2003: 43), many critical of Third World agency that is performed scholars have, over the years, warned against whenever its contributions to the origination this tendency to erase the “Third World” from and development of the human rights idea is the story of the origins and development of deliberately or accidentally denied – as part human rights. For instance, Balakrishnan of a now familiar broader set of discursive Rajagopal has quite understandably techniques through which the Third World lamented the rather unfortunate fact that the is objectified and treated almost exclusively Third World rarely figures in what he has as “a domain or terrain of deployment” of referred to as the mainstream “tellings” of the “universal imperatives” that have been con- extant story (Rajagopal 2003: 172). Tiyambe structed elsewhere by supposedly far more Zeleza has pointed to the conscious or advanced minds (Anghie 1996: 331; Mutua unconscious failure to in part root the inter- 2001: 205; Rajagopal 2003: 171). This national human rights movement and the legal points squarely to a serious “lack” in the regime it has spawned in the long histories of way the dominant international human the struggles of Third World peoples against rights discourse understands and treats the slavery, colonial despotism, and postcolonial Third World; one that must be redressed if misrule (Zeleza 2004: 3). And Paulin the discipline is to transcend its many other Hountondji has warned against the confla- limitations. tion (by those to whom the Third World’s hand in the development of human rights Neglect of pro-human rights Third appears invisible) of the question of the World cultural norms origins of the idea of human rights with that of the origins of a particular conception of human Despite the fact that some of the most rights (Hountondji 1986). discerning observers of the discipline have Against the tendency in mainstream recognized that its attainment of cultural human rights historiography to skip the legitimacy within the relevant societies is a difficult but imperative prior ethnographic necessary precondition for the abridgement work that needed to be done before any viable of the often wide gap between theory and conclusions can be drawn as to the historical practice in international human rights law presence or absence of the idea (as opposed (An-Na’im 1992: 431; Donnelly 1995: 249; to the narrow liberal western conception) of Robinson 1993: 632; Zeleza 2004: 13), local human rights in at least some Third World culture – especially non-western culture – is societies, some scholars have now demon- all too often constructed within the human strated, conclusively in my view, that at the rights discourse in purely oppositional terms, very least functionally equivalent conceptions as an obstacle to be surmounted and as a huge of human rights have existed for very long part of the problem. Rarely is it imagined periods of time in many Third World soci- as an important part of the human rights eties (for example, Bell 1996: 650–1; Deng solution (Nyamu 2000: 392–5). So in this 1990: 288; Quashigah 1999: 43, 66; Wiredu rather simplistic binary typology, human 1990: 257). Thankfully, there seems to be in- rights norms (which are seen as a fixed creasing recognition of this position among already known quantity) are an unalloyed good both historians and historiographers of the and local culture (which is seen in a similar discipline (Arat 2006: 419; Lauren 2003). monolithic light) is unqualifiedly bad. As importantly, critical Third World No wonder then that there has been approaches to international law (TWAIL) such scant mainstream ethnographic research scholars have identified and situated the into the nature and properties of the cultural contrary position – that is, the partial eclipse norms that operate within Third World and

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other societies; and that systematic knowledge impressive response of the United Nations to of the positive capacity of some of these norms the challenge posed to it by women’s move- to modify, shape and advance the enjoyment ments around the world (Charlesworth of human rights is almost entirely lacking in 1998: 791), the world is still nowhere near the dominant international human rights dis- putting an end to the more or less undeni- course (Zeleza 2004: 11). Even more worri- able reality in every human society of un- some is the fact that such neglect of the justifiable discrimination against women necessity of producing knowledge about the on the basis of their gender (Apodaca 1998: nature and properties of the pro-human 139–40). Clearly, this is a disturbing situation. rights local cultural norms that exist in many Yet, even within the international women’s non-Western societies also characterizes the movement, Third World women activists and work done and literature produced by all too scholars have, while accepting that women many of the local human rights NGOs that everywhere have some common concerns, operate in the Third World (Okafor 2006: tended to express a sense of partial eclipse by 106–11). a dominant western agenda (Nesiah 1993: This situation is extremely problematic 199; Oloka-Onyango and Tamale 1995: 701) from the point of view of the attempt to ensure that too often merely consigns them to the widespread respect for human rights. It role of paradigm receivers who simply apply eclipses in part the sunlight that could help feminist international human rights theories energize the pro-human rights struggle in most developed in the west. of the world’s societies. For, if as Ibhawoh has noted, every cultural tradition contains some Rights of indigenous peoples norms and institutions that are supportive of human rights, as well as some that are anti- Judged from the overall profusion in the pro- thetical to its enjoyment (Ibhawoh 2000: 859), duction of U.N. treaties and soft law stand- why has the dominant international human ards in the international human rights area, rights discourse concentrated almost all of its the U.N.’s failure over the last 12 years or so energies on the analysis of the negative to adopt even one dedicated treaty in the dimensions of local culture? Why has far more indigenous rights area (Corntassel 2007: 138; attention not been devoted to the crucial task Williams 1990: 696–8) is a profound reflec- of “finding the space that local contexts pro- tion of the severity of the partial blind spot vide” for the advancement of international and sheer lethargy that afflicts international human rights law (Nyamu 2000: 417)? human rights law with respect to the recognition and advancement of the rights of indigenous peoples. Worse still, it was only in June Women’s rights 2006 that the U.N. Human Rights Council Although, as Hilary Charlesworth has noted, adopted the formally non-binding Declara- the rhetoric of women’s rights seems to have tion on the Rights of Indigenous Peoples.6 And achieved widespread formal public legiti- although, in its case, it was adopted before macy on the global plane (regardless of what the commencement of the U.N. Decade on many states and societies actually believe), Indigenous People, the existence of the Inter- it is difficult to sound as positive with re- national Labor Organization’s Indigenous and spect to the concrete practice in this area Tribal Peoples Convention No. 169 of 1989 does (Charlesworth 1998: 791). Despite the fact that not remedy this problem.7 The fact that it over 90 percent of the world’s countries have has been ratified by precious few countries ratified the Convention on the Elimination (Quane 2005: 655) and is therefore of very of all Forms of Discrimination against limited applicability around the world, sug- Women (CEDAW),5 in spite of the rapid and gests this conclusion. 308 9780415418768_4_021.qxd 26/11/2008 02:40PM Page 309

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Ethnic minority rights imperative social necessity for the deployment and vindication of such rights. Despite the relative robustness of the corpus of regional treaty law aimed at the protection Sexual orientation of ethnic minorities,8 and the availability at the global level of Article 27 of the There is no doubt that the rights of sexual International Covenant on Civil and minorities have been marginalized in Political Rights (ICCPR) and of even the international human rights law (Murray and common Article 1 of both the ICCPR and Viljoen 2007; Sanders 1996: 78–87). For one, the International Covenant on Economic, when they feature at all these rights sit very Social and Cultural Rights (ICESCR),9 the low on the priority listing of the human rights fact that the principal U.N. legal text in the of the U.N. (Morgan 2000: 208; Sanders 1996: area, the U.N. Declaration on the Rights of Persons 68). Even U.N. soft law instruments are hard Belonging to National or Ethnic, Religious and to find in this area (Heinze 2001: 298–300). Linguistic Minorities is “merely” a soft law doc- This is therefore another area of the discipline ument is one good pointer to the relative in which a partial eclipse is detectable. disfavor and neglect that the protection of ethnic minority rights has suffered in the post- Mental disability rights 1945 world order. The other pointer to the relative neglect In general, although the regional human of ethnic minority rights in the U.N. system rights systems have paid some attention to is the largely ideological insistence in most mental disability rights,11 hard law texts are of the relevant global and regional treaties all non-existent in this area of international (with the notable exception of the African human rights law. The global norms governing Charter on Human and Peoples’ Rights)10 on this subject matter are to be found in formally conceptualizing and crafting what are meant non-binding and often generally obscure to be ethnic minority rights in terms of the soft law instruments.12 In sum, the area is rights of persons belonging to ethnic min- only just beginning to recover from decades orities ( Jovanovic 2005: 628–9). This tend- of neglect and inattention by international ency has its roots in the dominance of a human rights law. particular version of liberal thought in this area; one that has long insisted on the inad- Economic, social, and cultural rights missibility of collective rights (Donnelly 2003: 204–6; Kymlicka 1989; McDonald Despite the contingently useful international 1991). Yet, it is becoming clear that certain rhetoric of rights indivisibility and inter- human rights – such as the right to speak one’s dependence (Agbakwa 2002: 178), it is now minority language – do not make all that beyond serious debate that so-called economic, much sense when conceived as individual social, and cultural (ESC) rights have been rights (Klabbers 2006: 205; Newman 2007: historically marginalized in international 231–2). human rights law and practice in favor of Thus, despite the urgency of instituting so-called civil and political rights (Donnelly effective ethnic minority rights protections 1995: 241–5; Oloka-Onyango 1995: 1; around the world as a key way of addressing Woods 2005: 103–4). In part as a result the injustices that constitute the root causes of their continued marginalization of ESC of many violent and costly civil conflicts, the rights work, the dominant actors within the dominant international human rights dis- human rights movement still fail to address or course has tended to reproduce the disdain address adequately “the most pressing issues for collective rights that flies in the face of the of poverty, inequality, and marginalization 309 9780415418768_4_021.qxd 26/11/2008 02:40PM Page 310

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affecting large majorities in most countries” rights paradigm (Baxi 2006: 132) tends to ( Jochnick 2004: 90; Khan 2004: 16). Thus, privilege the rights of capital over the rights despite their critical relevance to the struggle of impoverished humans; construct the pro- to uplift the world’s impoverished majority gressive state as one which is much more soft (Felice 2003: 2–7), ESC rights have been than hard toward global capital; imagine the partially eclipsed over time by, among other ideal state as one that is market efficient in factors (Vizard 2005: 4), the relatively dis- suppressing and de-legitimating the human proportionate attention that has been paid rights-based practices of resistance of those of in both text and practice to civil and polit- its own citizens who actively oppose that state’s ical rights. excessive softness toward global capital; and coerces and/or encourages states to free as many spaces for global capital as possible, Neo-liberal globalization and initially by pursuing the three Ds of con- “trade-related market friendly temporary neo-liberal globalization: near human rights” relentless deregulation, denationalization, Focused as it has largely been on the and disinvestment (Baxi 2006: 234–75). advancement of civil and political rights, This has led to all too many serious and and as skeptical as it has tended to be of the increasingly well-recognized negative effects necessity of the struggle for ESC rights, the (Howard-Hassman 2005: 4–7), including its capacity of the living international human reproduction within international human rights law to defend and protect the rights rights law. of the impoverished and socioeconomically marginalized majorities of most countries Global power matrixes and the has, at best, been significantly weakened by displacement of alternative human the march of a particular (if historically recog- rights narratives nizable) form of socioeconomic globalization: neo-liberal globalization. Largely via the As Jack Donnelly has correctly observed in operation of market discipline, which oper- his recent critique of “arrogant and abusive ates with little or no coercion and “imbues ‘universalism’,” the precious few countries of the individual with particular ways of think- the world which currently hold and exercise ing, knowing, and behaving, thus instilling the greatest global political, economic, and cul- modes of social consciousness that make tural power too often confuse and conflate social action predictable” (Evans 2005: the interests of the dominant segments of their 1054–5), neo-liberal globalization has societies with universal values (Donnelly authored a so-called “second great trans- 2007: 304–5). When coupled with the vastly formation” in world conditions and affairs disproportionate power which is available to (Howard-Hassmann 2005: 3) in which the this small group of mostly western actors to validity and applicability of normative and project their parochial world views and pre- other claims tends to be judged against the ferred historical record onto the world stage normative referent of a set of “liberal free- and construct and normalize them into the doms” (Evans 2005: 1057–1062). human rights gold standard which every This has resulted in the ascendancy other society ought to aspire to attain, the (although not exclusive dominance) of a par- material and cultural power of these actors has ticular conception of international human all too often (although not always) produced rights law that is at the very least “friendly” a range of negative consequences, especially to market discipline (Baxi 2006: 235). In its for the vast majority of the world’s peoples unfortunate praxis, the resultant trade- who inhabit the Third World. Some of these related, market friendly (TREMF) human consequences are discussed later. 310 9780415418768_4_021.qxd 26/11/2008 02:40PM Page 311

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One of the most harmful features of this international human rights law within its kind of western-style “global dominance is the domestic legal system (Wu 2006: 140–5), and perpetual rediscovery of its own perceived the rather frequent failure of far too many of innocence” (Falk 2000: 87). The myth of its own international human rights advocates western innocence has been so normalized to assess the policies of their own govern- and is so powerful that it is now encoded in ment against the same international human the living international law of human rights; rights standards that they deploy in their that is the law as it is actually concretized and frequent criticism of Third World govern- experienced. And so, despite a long history ments (Okafor 2001: 576; Tomasevski 2005: of abuse and exploitation of non-western 713). peoples – from the dispossession of the indi- The relentless attempts of the current U.S. genous peoples of North America, to slavery administration to exploit the tragic 9/11 and anti-black racial abuse, to the atrocities events to “eviscerate basic rights” not just of colonial rule in Afro-Asia, to Hiroshima within the U.S. but also in its treatment and Vietnam, to French atrocities in Algeria, of persons accused of terrorism or captured to CIA and other government-sanctioned on the battleﬁeld in Iraq or Afghanistan killings in the Third World, to Abu Ghraib (Dickinson 2002: 1410; Tolley 2004: 540) and and Guantanamo Bay, and so on and so the fact that the U.S. still manages not just forth (Falk 2000: 87; Woods 2005: 487) – the to retain its self-image (however diminished) human rights savior is still almost always as the “city on the hill” to which all other understood as western while the human rights peoples ought to look for direction, but also savage is almost exclusively constructed as continues to shape in a somewhat dispropor- non-western (Mutua 2002: 11–14; Okafor tionate way the human rights behavior of 2001). Needless to say, the construction of this key U.N. committees (Foot 2007: 490), is myth of western innocence serves to fore- another example of the negative effects ground a narrow and incomplete narrative that that can be exerted in human rights discourse backgrounds what ought to be in the fore- (and, by implication, in international human ground of the human rights story, thus dis- rights law) by the tendency of global power placing alternative human rights narratives. matrixes to operate in ways which displace The construction and normalization in and partially eclipse alternative human rights international human rights law of this kind of narratives in favor of the more dominant heaven/hell binary (Okafor 2001) and its prop- human rights stories. In this way, a particu- agation of the myth of western innocence has lar preferred human rights picture is con- fed much life sap into the idea of western (espe- structed and projected; one that inevitably cially U.S.) exceptionalism, thus rendering it shapes the living international human rights much more plausible than it would otherwise law. seem (Forsythe 2006: 466; Zeleza 2004: The overall point that is made in this sec- 9–10). In its U.S. iteration, this idea has been tion is not that one wishes that there were deployed to justify U.S. self-exclusion (nay, no powerful actors in the world. It is not being near immunity) from international human suggested either that there can ever be a world rights law. The unfortunate logic here has been that is completely devoid of power asymme- that if U.S. behavior is already the gold stan- tries. Power asymmetries can be radically dard in every human rights area, then why reduced but are not likely to ever be totally would it need any international standards to erased from global social life. For is not shape its behavior? This stance has led to power, after all, relational? Does not every the failure of the U.S. to ratify a number of actor exercise power in relation to some other important international human rights treaties actor in some context? Thus, there can be (Ignatieff 2001: 13); its reluctance to apply no international human rights praxis that 311 9780415418768_4_021.qxd 26/11/2008 02:40PM Page 312

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operates safely beyond the reach of global inflicted historical wrongs such as land dis- power. What is being suggested in the pre- possession in Southern Africa further illustrates ceding paragraphs is that human rights need this weakness of international human rights not be as amenable to global power as it cur- law at contributing to the righting of so- rently is, and that the fact that it is currently called historical wrongs. As different as the so has produced far too many ill effects for two societies are today, in both South Africa all too many of the world’s peoples. and Zimbabwe, despite their respective successes at ending the formal political subjuga- tion of the vast majority of their populations “Historical” wrongs by a white settler colonial class, over the International human rights is, at best, ex- periods they have been so freed, there has tremely weak at righting so-called historical not been all that much significant change in wrongs (especially those of a material kind) the racialized structure of ownership of the to the reasonable satisfaction of most within arable land in those societies.13 Now, inter- the wronged subaltern group. national human rights law is not, of course, Massive historical atrocities such as slavery chiefly responsible for this scenario. The and colonial dispossession/abuse currently point that is being made here is that when go unpunished or not redressed in part the living international human rights law because the perpetrators and victims are too has engaged this issue at all – at least as seen easily constructed as long dead, and the from the commentary of scholars (Boyle current individual citizens of the responsible 2001; Shirley 2004) and the statements of civil countries are too readily portrayed as inno- society groups (one good example is Human cent of the crimes committed by their ances- Rights Watch), they have – to some extent tors. Yet, almost all of the responsible states quite understandably – focused on lamenting currently exist intact. Is the real issue not the the (corrective) dispossession of those who responsibility of the collectivity (the state) for currently hold the very lands that were dis- the acts that it (the state) indisputably autho- possessed from the vast black majorities of both rized, albeit many years before? In any case, of these countries. Worrisomely far less, if any- do not current citizens of those states enjoy thing at all, is said in this literature about the the exponentially compounded material and initial dispossession of the black majorities or other benefits (such as centuries of net free the critical need to urgently redistribute their labor) extracted through slavery and colonial lost lands to them, so as to create more equi- abuse? Of course, some could deploy more table, egalitarian, and just societies in these technical international law arguments such as countries the operation of inter-temporal law in the hope In the end, the point is that it is as if inter- of defeating arguments that suggest that these national human rights law can only func- sorts of historical wrong ought to be righted tion well when fundamental historical with the help of international human rights wrongs have already been addressed and/or law. But the unmitigated fallacy of the inter- are not all that salient anymore. It does not temporal law argument is that it projects onto itself show more than an extremely limited the colonized Third World peoples an inter- capacity to help reconfigure grossly unjust European (and therefore geographically lim- fundamental socioeconomic and political ited) law that they had not accepted and which arrangements. Here, the deepest ideological clearly did not govern their affairs until underpinnings and moorings of international much after the very atrocities complained of human rights law combine with the opera- had been committed. tion of particular forms of global power to The story of the attempt, over the last eclipse alternative human rights narratives and decade or so to redress more recently practices. 312 9780415418768_4_021.qxd 26/11/2008 02:40PM Page 313

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Beyond disciplinary renewal the resistance and struggles of Third World and other social movements (Rajagopal 2003: In conclusion, it is important to consider, even 245–71). These social movement struggles if brieﬂy, the possibility of international have been waged by “protest coalitions” human rights law pushing back against and comprised of varying arrays of trade unions, ameliorating the harmful effects of the full professional associations, women’s groups, and partial eclipses that are discussed here; community and non-governmental organiza- thereby strengthening its coherence, legiti- tions, religious leaders, environmentalists, and macy, and effectiveness. In other words, after human rights activists (Zeleza 2004: 1–3), and taking stock, can the discipline renew itself have sometimes helped produce important, without repeating the mistakes of the past even remarkable, social changes. This is a fact (Kennedy 2000)? Is this even possible? that has not been all that easily received into A key path to disciplinary renewal that has the routine analytic processes through which been suggested by a diverse bunch of some stories of the discipline are written. In tend- of the most established international human ing not to take adequate account of these rights scholars of our time is a turn to “cross- struggles and their effects (Rajagopal 2003: cultural dialogue” or some such conversation 245–71), international human rights lawyers or communicative praxis (for example, see have too often labored under the mistaken An-Na’im 1992; An-Na’im and Deng 1990; impression that international human rights law Baxi 2006: 125–68; de Sousa Santos 1995: is simply what international human rights 337–53; Donnelly 1995: 250–2; Mutua lawyers make of it (Rajagopal 2006: 1091). 2002: 113). The basis of this call for dialogue Yet, in truth, as Rajagopal has told us, inter- is the recognition of these scholars of what national human rights are what an expanded Mutua has termed the incompleteness of group of its practitioners (including social every culture, including the predominantly movements, the masses, etc.) make of it western cultures from which most of main- (Rajagopal 2006: 1091). This is precisely stream global human rights proselytism why the suggested cross-cultural dialogue emerges (Mutua 2002: 113). The expressed must include and take seriously the popular intention of most of those who have made “human rights talk” of the so-called ordinary this call is to encourage the development of citizens of the very cultures that are to par- what Donnelly has recently referred to as a ticipate in the dialogue. partial and incomplete but “functional over- Regardless of the considerable merits of lapping consensus” around the “relative cross-cultural dialogue as a renewal strategy in universality” of the conceptual frameworks international human rights law, it is doubtful that ground international human rights law that it is likely to result in an adequate and norms, while avoiding as much as is possible sustained transformation of the discipline – at the imperialistic undertones and effects of all least not any time soon. Examined closely too many articulations of the universality of enough, the historical evidence simply does human rights (Donnelly 2007: 289–92). not support much optimism in that direction. It is also becoming increasingly recog- For, although over its relatively long career nized that for this cross-cultural dialogue to the international human rights law discipline be as meaningful as it could be, it must include as we now know it has experienced many far more than a complex series of bi- and bursts of renewal, it has never adequately trans- multilateral interstate conversations. As formed itself. To put it rather crudely, no mat- Rajagopal’s germinal work has demon- ter how far human rights law has expanded strated, the living international human rights its zone of protection, someone has always law (as it is experienced by most peoples in been left out in the human rights cold. The the world) is in part written and limited by American Declaration of Independence loftily 313 9780415418768_4_021.qxd 26/11/2008 02:40PM Page 314

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proclaimed that all humans were born free location of the zone of protection, in order and should remain so while slavery remained to capture or release another who has been conceptually legitimized in the praxis of the either “mainstreamed” or “othered.” very drafters of that document and went on Such then is the nature of the duality of largely unhindered for over a century after- the deep structure of human rights law – be ward (Morgan 1972). Even today, when it international or local – that it is driven, to studied closely it becomes apparent that the a significant extent, by the construction of living mainstream human rights praxis is boundaries and binaries (such as the worthy still based to a significant extent on the deep and the unworthy) that allow it to displace conceptual structure of the oppositional and shift suffering from one to its “other” with- competition between the deserving and the out fundamentally transforming (as opposed to undeserving, and the displacement of suffer- renewing) the nature of suffering in that ing from the deserving to the undeserving. context, the nature of local or global social Landless black Southern Africans must suffer life, or itself as a local or global discipline. so that their landholding white counterparts can enjoy their economic human rights (Mutua 2002: 142–4). Here, the landless Notes blacks are constructed as undeserving while the landholding whites are positioned as 1 I owe this term to Makau Mutua’s fecund imag- deserving; with the result that the potential ination. See Mutua 2002: 40. 2 See General Comment No.31 on Article 2 of the white suffering that could result from more Covenant: The Nature of the General Legal deeply egalitarian land reforms are displaced Obligation Imposed on States Parties to the toward the landless blacks. The anticipated suf- Covenant, adopted March 29. 2004, Human fering of the “deserving” beneficiaries is thus Rights Commission, 80th Session, 2187th displaced toward the “undeserving” victims. Meeting, 8 U.N. Doc. CCPR/C/74/ CRP.4/Rev.6 (2004). The point is not, of course, that in the 3 See Baxi 2006: 4. process of its renewal, international human 4 Supra note 10. rights law cannot find some middle ground 5 Supra note 4. or accommodation with respect to each of 6 Human Rights Council Res. 2006/2. these cases. What is being suggested is that 7 72 ILO Official Bulletin 59. 8 See the following: Document of the Copenhagen even such an accommodation is unlikely to Meeting of the Conference on the Human escape the deep conceptual structure that the Dimension of the Conference on Security and Co- discipline has exhibited over its career. For operation in Europe, adopted 29th June 1990 and some displacement of suffering from those reproduced in (1990) 11 Human Rights Law who are viewed as deserving toward those Journal 232; Recommendation 1134 on the rights of minorities, EUR. Parl. Ass., 42d who have been forced into the strait-jacket Sess., 2d part (1990); the Council of Eur- reserved for the undeserving will still occur. ope Framework Convention for the Protection The accommodation will most likely only of National Minorities, C.E.T.S. No. 157, reduce the extent of this displacement of suf- reprinted in 34 I.L.M. 351 (1995), adopted fering. And so, the zone or band of inter- February 1, 1995. 9 Supra note 6. national human rights protection may ebb and 10 Supra note 10. flow, may expand or contract, but this 11 See Aerts vs. Belgium, App. No. 25357/94, Eur. mobility of the boundary of protection does Ct. H.R. (1998); Keenan vs. United Kingdom, not erase entirely the margin that is inhab- App. No. 27229/95, Eur. Ct. H.R. (2001); ited by those who have been left in (nay, Varbanov vs. Bulgaria, App. No. 31365/96, Eur. Ct. H.R. (2000); Autism-Europe vs. France, shifted to) the human rights cold. What European Committee of Social Rights, occurs instead is a shifting of coordinates, an Complaint No. 13/2002, Decision on the adjustment in the conceptual or even concrete Merits transmitted to the Committee of 314 9780415418768_4_021.qxd 26/11/2008 02:40PM Page 315

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Ministers on 22 May 2003; Rosario Congo (1994) on Psychiatry, EUR. Parl. Ass. 10th vs. Ecuador, Case No. 11.427, Inter-Am. Sitting, Rec. No. 1235, adopted April 12, 1994; C.H.R., Report No. 63/99, OEA/Ser.L/V/ Human Rights and Recommendation Rec II.102, doc. 6 rev. (1998); Purohit and Moore vs. (2004) 10 on the Protection of the Human Gambia, African Commission on Human and Rights and Dignity of Persons with Mental Peoples’ Rights, Communication No. 241/ Disorder, Comm. Of Ministers, 896th Meet- 2001 (2003). ing, Rec. No. (2004) 10, adopted September 12 See the following: World Programme of 22, 2004); and Montreal Declaration on Intel- Action concerning Disabled Persons, G.A. lectual Disability, adopted October 6, 2004. Res. 37/51, U.N. GAOR, 37th Sess., Supp. 13 As at 2005 only about 3% of commercial No. 51, U.N. Doc. A/37/51 (1982), adopted farmland in South Africa was redistributed December 3, 1982; Declaration of Caracas for between 1994 and 2004. Some 60,000 com- the Restructuring of Psychiatric Care in Latin mercial farmers (mainly white farmers making America, adopted November 14, 1990 at the up about 5% of the total population) own Regional Conference on the Restructuring of between 67–87% of the total area (Moyo Psychiatric Care in Latin America, convened 2004: 7; Wisborg and Rohde 2005: 400–10). by PAHO/WHO; Principles for the Protec- In pre-redistribution Zimbabwe, approxim- tion of Persons with Mental Illness and the ately 4500 white commercial farmers (0.03% Improvement of Mental Health Care (MI of the population) controlled 31% of the Principles), G.A. Res. 46/119, U.N. GAOR, country’s land under freehold tenure, or U.N. Doc. A/RES/46/119 (1991), adopted about 42% of the agricultural land, while 1.2 December 17, 1991; Standard Rules on the million black families in Zimbabwe subsisted Equalization of Opportunities for Persons on 41% of the country’s area of 39,007,600 with Disabilities, A/RES/48/96, 85th plenary hectares (Moyo 2004: 9). While changes have meeting, adopted December 20, 1993; since occurred to this landholding structure, it Council of Europe’s Recommendation 1235 has not changed all that signiﬁcantly.

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22 Colonial origins of intellectual property regimes in African states

Ikechi Mgbeoji

This chapter analyzes the colonial roots of intel- domestication of IPR in the African con- lectual property rights (IPR) regimes in African states tinent. The final sections summarizes the and argues that the inability of contemporary arguments put forward in the chapter by African states to internalize some of the key doc- examining how the cultural disconnection trines of IPR regimes can be linked to the under- between patent systems has influenced the lying differences between African worldviews and inability of modern IPR laws to influence the Eurocentric philosophies underpinning IPR social and economic behavior in African regimes. Using the general concepts of patent law states. as the analytical framework, it argues that unre- constructed Eurocentric IPR in Africa may be blamed for the perverse phenomenon wherein legal provi- The local as universal sions in the statute books have failed to translate to compliance with IPR in many African states. Although IPR regimes are often promoted as It contends, in summation, that colonial rivalries universal verities (Drahos 1998: 13), scholars between decolonized African states are responsible are increasingly aware that standardized for the institutional fissures and balkanization of global IPR regimes affects various societies in continental regulation of IPR in Africa. different ways (Endeshaw 2002: 55). Indeed, in the past decade, the local impulses and This chapter is divided into four sections: characteristics of IPR in various states and The first queries the general assumption that across different historical timeframes have IPR are universal verities divorced from all become subjects of legitimate inquiry local truths, in particular, the Eurocentric (Grundmann 1976; Penrose 1951). IPR worldview and value systems of modern regimes are, indeed, susceptible to the per- IPR. The second section traces the origins of ceived changing demands of industrialized IPR and relates the European origins of the states and the power relations between states patent system to its unsuitability for African (Chiappetta 2000). realities. In the third section, we examine the Yet, for a long time, especially in the features that make modern patent systems heydays of colonial domination of Africa, uniquely Eurocentric and argue for a recon- Eurocentric scholars and institutions pre- sideration of those doctrines that impede tended that IPR are universal verities lacking 316 9780415418768_4_022.qxd 26/11/2008 02:40PM Page 317

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in local differences and historical contingen- cultural conquest of the globe. A combina- cies. As Endeshaw (2002: 55) has observed: tion of certain historical factors facilitated and encouraged the diffusion of IPR regimes [T]his trend is evident in standard IP text- from Europe to many parts of the world books and even WIPO publications. Pick including Africa. up any of these writings and you will see a As a colonial transplant and imposition on discussion beyond the concrete; an out- African societies, Eurocentric IPR were part pouring of rules and policies that do not tie of the cultural, economic, and legal instru- in with specific conditions of countries. Perhaps this had to do with the misfortune ments for the control and subordination of col- of IP being in the suffocating care of onized peoples and economies (Sagoe 1992; lawyers and not economists. Sklan 1978). As I have argued elsewhere (2006: 13), the transplanting of IPR from Europe Despite the grudging admission by IPR to Africa was an essential part of the racist scholars of the varieties and different tempera- and exploitative repertoire of the colonial pro- ments if not doctrinal differences, among IPR ject. The colonization of native Africans by in several states, an often ignored dimension European states was premised on two main of the local nature of IPR is the influence of grounds, namely, a sense of European innate the colonial origins of IPR in Africa. Yet, it superiority over colonized peoples, and, of cannot be seriously doubted that the nature course, economic exploitation of the colo- and content of IPR laws and institutions, espe- nized. On the former, colonial Europe cially patents, trademarks, and copyrights sought to justify its suppression of native clearly show that the dominant IPR have their African laws and institutions on the hypo- origins in the cultural, legal, and economic thesis of racial superiority of Europeans and traditions of continental Europe and of the inferiority of “the savages and primitives” western jurisprudence and economic systems of Africa (and Asian, natives of the Americas, (Mgbeoji 2003). Consequently, it would be aboriginal Australian and the Maoris of New problematic for scholars to persist in the Zealand). It was largely on the notion of a myth that local economic, technological, racial ordering of that the colonialist enter- and cultural conditions do not influence the prise justified the acquisition and colonization structure and content of IPR laws and insti- of large swathes of lands and cultures occupied tutions (see, e.g. Beier 1980). Thus, I argue by peoples considered by the colonizing in this chapter that the prevailing notion European Christians as “backward territories” that Eurocentric varieties of IPR regimes and primitive peoples (Lindley 1969). should be universally accepted as symbols On the latter, European colonization of of civilization is a notion that needs to be Africa was designed as machinery for the scrutinized (Endeshaw 2002). looting and dispossession of the colonized The European origins of copyrights, trade- peoples of Africa of valuable natural resources marks, and patents regimes is widely acknow- (Wa Mutua 2000), and to create a ready ledged but scholars have hardly inquired into market for European goods. To achieve the subject of whether the philosophical and both ends, the colonial enterprise had to cre- cultural underpinnings of dominant IPR ate legal and social structures that ensured not may have implications for the efficacy of such only a racist ordering of cultures and societies, IPR in the African landscape (Lowenstein but a violent imposition of foreign legal norms 2002). It needs to be borne in mind that the and institutions on conquered peoples and cul- diffusion and spread of IPR regimes from tures for the purposes of European economic Europe to other parts of the world followed supremacy. The obvious implication is that distinct patterns derived from the single Eurocentric IPR regimes such as patents, copy- template of European economic, political, and rights, trademarks, etc., like other manifestations 317 9780415418768_4_022.qxd 26/11/2008 02:40PM Page 318

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of European values, norms, and institutions, alized the Third World,1 especially, Africa had to be internalized by colonized soci- (Gervais 2002). This phenomenon is currently eties if such colonized societies were to be epitomized by the limited participation and regarded as “developed” and “civilized.” near irrelevance of African countries in global It must be emphasized that the imposition IPR law-making processes (Endeshaw 2002). of Eurocentric IPR on African societies As some scholars have observed, in the operated on the prevalent notion that colo- development of global IPR and trade frame- nized African peoples and cultures had no works,2 a constant phenomenon is the civilization, no jurisprudence, institutions, or marginal roles played by African states methods of governance worthy of respect, (Blakeney 1996; see also Gervais 2003). let alone deserving of legal protection Despite its enormous size – the African con- (Bedjaoui 1978: 153). To all intents and pur- tinent is four times the size of the United States poses, the colonized territories and peoples (Mallet 1999) – Africa has contributed little were treated as cultural tabula rasa (Coombe to the emerging global regimes on IPR 1995), on which the colonialists proceeded (Correa 2002). The questions raised by the to inscribe European institutions, norms, and continued marginalization of African states systems, including IPR regimes. This project in the global production and regulation of was facilitated and justified by diverse legal IPR norms and institutions echo the unfor- theories and methods which need not detain tunate global notion that Africa is a dumping us here but it will suffice to note that the entire ground for foreign goods, foreign laws, and process was executed without the consent or foreign norms (Mgbeoji 2004). input of colonized peoples. Despite the successful globalization of Accordingly, it has to be understood that IPR (F. Abbott 1999), the transplantation of the colonial project was not merely the Eurocentric IPR to African countries has unprecedented robbery of Africa, but also the not been matched with success, at least in near annihilation of autochthonous legal sys- terms of internalization of IPR norms by a tems and protocols. Conversely, Eurocentric reasonable proportion of African businesses laws and instruments were promoted as the (Mgbeoji 2007). Rather, IPRS in Africa highest attainments of rationality, empiricism, have been beset with several challenges and justice: universal truths and ideals attain- including domestic economic difficulties, able by all societies regardless of differences cultural dissonance, and institutional incap- in culture (Shiva 1988). As Wa Mutua (2001) acities. There is emerging scholarly specu- has observed, within this prevailing logic of lation that the inability of modern IPR to take the colonial project, “history is a linear, uni- root in many African states may be related directional progression with the ‘superior’ and to the failure of policymakers to adapt ‘scientific’ Western civilization leading and Eurocentric IPR to local needs and world- paving the way for others to follow.” view. Using the patent system as a model, the Today, there is hardly one African state that next part explores the viability of this school does not have IPR regimes copied from the of thought (Adewopo 2002). template of the former colonial overlord. Beyond the colonial origins of IPR, a corol- lary issue is the marginal roles played by colo- Colonial origins and migration of nial and newly decolonized African states in the patent system the creation of international and global IPR legal doctrines and institutions. Historically, The patent system is not new to controversy. the structure and process of international Conceived in circumstances that Lippert intellectual property regulation has margin- (1999: 129) described as “blackmail,” the

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concept of patents3 are traceable to Filippo America; and by colonialism and diffusion, to Brunelleschi’s successful blackmail of the the rest of the world. medieval Italian city state of Florence. According to Bruce William Bugbee, in Defining patents 1421, Filippo Brunelleschi, the Italian architect and painter, announced his invention of At this stage, a definition of the patent con- an iron-clad vessel, the Badalone, which he cept is apposite. Although there is no universal claimed could carry marble across Lake Arno patent law per se, Article 27 (2) of the for the construction of the now famous TRIPS agreement defines patents in terms of cathedral of Florence. Contrary to scientific a legal protection for products or processes tradition (Bugbee 1961: 76),4 Brunelleschi which are new, involve an inventive step, are use- refused to disclose the Badalone to the pub- ful, and capable of industrial application (Gervais lic. In addition, he rejected the idea of 2003, emphasis in original). The United putting the vessel at the service of the city States Patents Act provides that “whoever unless he was granted a limited right to an invents or discovers any new and useful pro- exclusive commercial exploitation of the cess, machine, manufacture, or composition vessel. Florence yielded to his unpreced- of matter, or any new and useful improve- ented demands and on June 19, 1421, the ment thereof, may obtain a patent therefor.”5 city issued him the first recorded patent in Machlup (1958: 2) has defined a patent as history. To Brunelleschi’s embarrassment, “that which confers the right to secure the the Badalone sank on its inaugural trip and the enforcement power of the State in excluding Florentine patent idea sank with it (Kaufer unauthorized persons, for a specified number 1989) – at least, for a long time. of years, from making commercial use of a Recovering from the rather inauspicious clearly defined invention.” debut in Florence, the patent concept Certain inferences may be made from migrated to Venice where it acquired leg- the various definitions of patents. First, in islative imprimatur and substantive features. spite of several theories on patents, especially, For instance, the Venetian patent law of attempts to couch the arguments for and 1474 provided for patent duration of 10 against patents in the discourse of human rights, years, examination of patent applications for there is no such thing as a human right to novelty, and punishment for infringement patents. A patent is a discretionary grant of of patent rights (White, Jr. 1967). However, a state on an invention which excludes un- with increasing papal intolerance and the authorized persons, for a specified number frequent political conflicts in the Italian pen- of years, from making commercial use of insula, Italian artisans, and craftsmen began a a clearly defined and specified invention.6 process of migration to central and western Second, the patent system is anchored on a Europe (Macleod 1988). Naturally, they did capitalist worldview. In recognition of these, not leave the concept of patents behind them particularly, the latter, the patent system, in Italy. They took the patent concept with especially in western societies, is ostensibly them. Netherlands in 1817, Spain in 1820, designed to recompense investors by its offer the Vatican in 1833, Sweden in 1834, of a temporary monopolization of the com- Portugal in 1837 (F. Abbott 1999: 228). mercial benefits of a clearly defined invention. Thus, it is fair to say that the modern patent Third, the system of patents purports to celeb- concept owes its original inspiration to the rate creativity or authorship as an individual Italian city states of medieval times. From cen- effort. This approach discounts immense so- tral Europe, the patent concept spread with cietal contributions and the incremental basis European immigrants to North and South of most inventions.

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For African societies, the crux of the The eurocentricity of the patent matter here is whether the patent system is system inherently universal in its philosophy, and if so, whether it offers the best economic Before examining in relative detail the main incentive for protecting and rewarding doctrinal obstacles to the internalization of inventions in the realms of activities that are the patent system by traditional African peculiarly communal and where innovations societies, it is imperative that the social and occur in an incremental nature, for example, institutional biases against traditional knowl- in plant genetic resources. Law, as most edge in general be addressed. The first jurists have restated, is a mirror of societal socio-cultural obstacle is the notion that values. In other words, does the Eurocentric bio-cultural knowledge is common knowl- patent concept reflect non-European values? edge possessed by every African villager. In resolving these difficult questions, certain This is a simplistic and indefensible dismissal factors must be taken into consideration. of the intelligent and labor-intensive inter- Primarily, the passage of time and contem- ventions of millions of people working porary realities have modified the jurispru- across the millennia. dence on property ownership, the social With particular reference to plants and food nature of the inventive process, notions of legal crops, it is known that domestication of personality, etc., which underpin the patent plants leads to increased varieties. This is prin- system. The crucial task thus is to locate the cipally due to the phenomenon of polyploidy: areas of abiding difference. This issue may a process by which chromosomes of any best be examined within the context of the particular specie are increased or multiplied provisions of the CBD, Article 27 (3) of to yield new varieties or species (Isaac 1970). the TRIPs Agreement,7 and perhaps, other Over the centuries, small-scale farmers and international instruments purporting to deal local peoples have contributed to plant with the subject, especially, the Food and diversity by breeding assorted crop varieties to Agriculture (FAO) Undertaking of 1983 (as suit particular local conditions (Friends of the clarified or amended by a number of other Earth 1995: 2).9 For instance, Indian farmers resolutions). have grown over 30,000 different varieties The patent system may be malleable in some of rice during the past century. The native respects but the question remains whether Andeans have developed hundreds of spe- African states have the political and economic cies of tomatoes, potato, maize, and beans. clout to create doctrinal deviations that best Indeed, scientists reckon that the “the total serve their own peculiar needs and aspira- genetic changes achieved by farmers over tions (Coulter 1991; see also David 1993). It the millennia was far greater than that seems to me that unlike the powerful indus- achieved by the last hundred or two years trialized countries,8 developing countries of more systematic science-based efforts” lack the economic and political machinery (Shiva 1988: 259). needed to create an effective but parallel Apart from developing new varieties, the global regime on Plant-related Resources knowledge of biological resources for medi- Knowledge. As Lara Ewens (2000: 307) cinal and other uses by local farmers and notes: “[B]ecause of the immense investment healers are often phenomenal and pragmatic. western corporations have made in plant For example, in Sierra Leone, local farmers genetic resources and plant genetic research, can differentiate between 70 different varieties and of the important potential biotechnology of rice based on several criteria including: offers for increases in global food supply, length to maturity, ease of husking, pro- modification of the system is likely to come portion of husk to grain size and weight, from within, if [it comes] at all.” susceptibility to insect attack, behavior in 320 9780415418768_4_022.qxd 26/11/2008 02:40PM Page 321

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different soils and moisture levels, cooking the approval and involvement of the time, and qualities (Nijar 1994: 17). holders of such knowledge, innovations This knowledge is not merely of academic and practices and encourage the equitable or theoretical importance; it serves practical sharing of the benefits arising from the utilization of such knowledge, innovations and ends. For instance, in Rwanda, farmers have 13 cultivated mixtures of beans that perform practices. better in their poor soil conditions (Friends of the Earth 1995). The Aguarana Jivaro The salient points from our analysis thus far community in the Peruvian Amazon has are that the links between rational human developed 61 distinct cultivars of cassava and impact on and mutual interaction with plant in the Philippines 123 rice varieties have been resources is enormous and profound. Sec- found at just five sites. In both cases, the vari- ond, the notion that plant resources in the eties are designed to suit certain specific gene-rich countries are resources of a “wild” requirements and needs. Thus, the abundance character is often generalized and exaggerated. of multitudinous varieties and species of A considerable portion of the so-called wild plant resources and the knowledge of the plant resources and ecosystems are, in fact, uses thereof among the so-called tradi- products of centuries of human impact on the tional societies are not merely dependent ecosystem and particularly, plants (Hochberg on geographical quirks but partly a result of 1996; Kaufman and Mallory 1993; Young deliberate and cumulative efforts spanning 1990). Thus, to determine the boundary, if thousands of years. any, between the so-called wild plant species Intellectual feats such as the aforementioned or “unknown” varieties thereof and the cannot be adequately protected by modern “domesticated” versions and the uses thereof patent law. Modern international law has requires a substantial degree of circumspec- equally come to terms with the reality of tion and open mindedness. Of course, the traditional input into the improvement, mischaracterization of traditional biological conservation and diversification of bio- resources as “raw materials” for western logical resources.10 The preamble of the biotechnology denies and delegitimizes the CBD recognizes the “close and traditional enormous intellectual contributions made dependence of many indigenous and local over the centuries by the so-called informal communities embodying traditional life- breeders, farmers and other local people. styles on biological resources.”11 Article 10 (c) Given the preceding arguments on the of the CBD obliges Contracting Parties to human impact on the improvement and “protect and encourage customary use of bio- sustenance of biological resources by local logical resources in accordance with cultural people in Africa and elsewhere, the next task practices that are compatible with conserva- issue is to examine doctrinal and institutional tion or sustainable use requirements.”12 obstacles that continually make it difficult for Recognition of the mutually reinforcing modern IPR such as patents to be internal- nature of human culture with biological ized by contemporary African societies. diversity is expressed in Article 8 ( j) of the For the purposes of securing patent pro- CBD which obliges contracting parties to: tection on biological resources, for example, it is not enough that an innovation has been wrought. The threshold for legal protection [R]espect, preserve and maintain knowledge, innovations and practices of indi- under the patent regime is whether the genous and local communities embodying invention has surpassed obvious or prior art traditional lifestyles relevant for the conser- in the field of that invention (de Valoir 1995; vation and sustainable use of biological Seay 1988–9). In attempting to apply patent- diversity and their wider application with like protections to biological resources, the 321 9780415418768_4_022.qxd 26/11/2008 02:40PM Page 322

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modified test is to ask: When do such inno- such. They are products of human know- vations, private or collective, surpass obvious ledge. To transform a plant into a medicine, knowledge or prior art (Caillaux 1994: 10)? for example, one has to know the correct And whose prior art is relevant? species, its location, the proper time of In addressing this question, two miscon- collection (some plants are poisonous in ceptions on the “traditionality” of bio-cultural certain seasons), the part to be used, how to prepare it (fresh, dried, cut in small pieces, knowledge and “naturalness” of traditional alcohol, the addition of salt, etc.), the way knowledge deserve our attention. First, to prepare it (time and conditions to be left references to the innovations and knowledge in the solvent). And finally the posology of traditional societies, especially on the issue (route of administration and dosage). of biological resources as “traditional” are often (Nijar 1996: 16) misconstrued to imply or mean that such inventions and innovations are static, anti- Put simply, it would be erroneous and too quated, and wrapped in mythology. That is sweeping to characterize all traditional bio- to say, there is a pervasive notion that cultural knowledge as mere “raw materials” African traditional knowledge or bio-cultural or as fortuitous revelations of nature. The knowledge are intellectual relics of a bygone naturalness of bio-cultural knowledge does era handed down to modern successors by not necessarily mean that there is an absence of unreliable oral history. Of course, there human intellectual input in the improvement exists “traditional knowledge” elements and modification of its relevance or utility. both in the western and non-western para- As the Sierra Leonean example indicates, inno- digms that are long-known. However, the vations within the traditional African farm- notion of antiquity associated with tradi- ing contexts, particularly, in plant breeding, tional knowledge, especially, on bio-cultural can be quite complex and thus is not a pro- knowledge is supported neither by common cess of mere conservation or knowledge of sense nor by international law. As the Four gene pools. It is, in fact, a mechanism for Directions Council points out, enhancement of natural genetic resources, albeit slow and laborious. [W]hat is “traditional” about traditional In order to achieve these sophisticated knowledge is not its antiquity but the way it is acquired and used. In other words, the results in the improvement of plant varieties social process of learning and acquiring which is or cultivars, it has been observed that those unique to each indigenous group, lies at the heart farmers: of its “traditionality.” Much of this knowledge is actually quite new, but it has a social mean- [E]mploy taxonomic systems, encourage ing and legal character, entirely unlike the introgression, use selection, make efforts to knowledge indigenous people acquire see that varieties are adopted, multiply from settlers and industrialized societies. seeds, field test, record data and name vari- (Dutfield 1999, emphasis added) eties [and in fact] . . . do what many Northern plant breeders do. The second common misconception about (Friends of the Earth 1995: 4) traditional knowledge is the notion that traditional knowledge of biological resources is mere discovery of “natural phenomena” It is from such intricate innovation systems waiting for the lucky discoverer. As Gurdial and processes that often yield the stupendous Nijar has observed: varieties and holistic knowledge of bio- cultural knowledge which traditional farmers [T]traditional uses, although based on nat- and healers have been reputed for. Accord- ural products, are not “found in nature”; as ing to a World Resources Institute report: 322 9780415418768_4_022.qxd 26/11/2008 02:40PM Page 323

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[I]ndians dwelling in the Amazon River With particular reference to enduring Eu- make use of some 1300 medicinal plants, rocentric patent law doctrines that impede the including antibiotics, abortifacients, con- internalization of patent systems by African traceptives, anti-diarrheal agents, fungi- societies, perhaps, the most remarkable doc- cides, anesthetics, muscle-relaxants, and trine of patent law is the fiction that inven- many other most of which has not been tions are necessarily the result of individual, investigated by researchers. spontaneous creativity and genius. Thus, a (Panjabi 1993)14 concept of reward and recompense on the Seventy-four percent of the pharmacologically idea of individual inventiveness discounts the active trees reported by an indigenous group daily African reality that most inventions are correlated with laboratory tests whereas in the result of incremental insights into what contrast only 8 percent of random samplings already exists in society. In the extremely per- showed any activity. In short, absent “the aid verse manifestation of the Eurocentric myth of indigenous groups, it is estimated that for on inventive genius, the “inventive genius,” every commercially-successful drug, at least and thus property in the inventions, belongs five thousand species must be tested” ( Jenks not to the actual “inventor,” but to the cap- 1995: 646). Michael Balick of the New York ital investment made by a multitudinous Botanical Gardens found that using traditional number of corporate or public stakeholders. knowledge increased the efficiency of This pandering to modern capitalism affords screening plants for medicinal properties by juridical basis for ownership by corporate en- more than 400 percent (Nijar 1994: 3). It tities of thousands of inventions. For farmers is therefore no coincidence that a decisive and native healers in the traditional African number of drugs derived from plant re- setting who produce new plant varieties or sources have been with the help of local peo- discover medicinal remedies from biological ples operating outside the dominant western sources, this is a juridical and institutional framework of what constitutes “scientific impediment. knowledge” (Roht-Arrioza 1996). The myth of the inventor as a lone ranger It seems clear that the opposition by the leads to the common notion that the patent “scientific and industrial” community to the concept is, inter alia, incompatible with the scientific worth or merit of traditional bio- inventive process in traditional communities. cultural knowledge has nothing to do with The communal/collective nature of the the innate inferiority of the latter but a development and improvement of bio-cultural reflection of a socially constructed relegated knowledge in traditional social structures status of innovations arising from the so-called and units has been posited as one of the traditional or informal sectors. As the grounds why such units of legal persona may environmental activist Pat Mooney has strid- not secure patent protection for their intel- ently posited, “the argument that intellectual lectual contributions to biological resources property is only recognizable when per- (Gana 1995). This school of thought points formed in laboratories with white lab coats to the individualistic structure of western is fundamentally a racist view of scientific societies. The contention is that the patent development” (Shiva 2000: 259). Every bio- system is partly predicated on the concept of cultural innovation, regardless of the cultural the inventor as an individual and the inven- framework from which it springs, deserves to tive process itself, as an exercise in solitude be judged on its own merits and not to be (Hannig 1996; Petersen 1992). In addition peremptorily categorized as “raw material” or to the obvious generalization inherent in automatically elevated to the status of an inven- this categorization of the inventive process tion merely because of the respective cultural in non-western societies, there are problems setting from which it is made or derived. of misapprehension of the modern social 323 9780415418768_4_022.qxd 26/11/2008 02:40PM Page 324

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structure of the inventive process in western single, often minute problems; inventions societies. become increasingly inevitable. First, the impression created by the notion of an individualized inventive process in the According to David Safran (1983: 117): western world is that of an inventor working alone and the invention, a product of his [I]n this age, most inventions result from own genius. Without this individual inven- corporate research efforts ...a growing tor, the invention would probably never number of these research efforts are the materialize. The invention is thus the “sweat result of the work of several research and of his own genius.” The theory is that the development teams that are located in dif- patent grant is designed to compensate ferent countries. him – the individual inventor. This idealized, in fact, perverse narrative of the character As this army of inventors are put to work, it of the inventive process, albeit heroic, is a is no coincidence that an overwhelming fiction; indeed, a myth. proportion of global patents on inventions are The individualism in western societies is owned by corporate institutions and public- probably a social fact but to suppose that the funded research institutions including uni- social structure of the inventive process has versities, where researchers and inventors remained static since the days of Benjamin routinely work in groups. Assuming that the Franklin and James Watt is erroneous. The hypothesis of a collective inventive process in notion of the solitary western scientist and traditional societies holds, the transformation inventor in his isolated basement or garage has of the inventive process in western societies become a legal anachronism. What baffles the is in several material respects similar to the mind is the longevity and obduracy of this inventive process in the so-called informal myth. Indeed, the contemporary reality is that sector. As Stephen Brush (1996: 145) notes, since the legal fiction of an employer’s own- “collective invention is a common and ership in the employee’s invention,15 and the determinant force in both local economies and economics of scale of group research, a com- the world economy.” munity of scientists working away in huge Interestingly, it has not been suggested such laboratory complexes has driven the concept collectively invented products in western of the solitary inventor to virtual extinction. societies cannot be patented because of a Yet, modern patent law persists to sustain the perceived inability to pin down the critical myth of the individual inventor. “flash of genius” involved in the invention Were Leonardo da Vinci, Thomas to a member of the collegial team in a west- Edison, James Watt, and Benjamin Franklin ern laboratory. Rather, the patent law has been alive today, they would in all probability be adjusted in western countries to create a working in commercial/multinational or convenient legal fiction of an employer’s public-funded laboratories, bouncing ideas off ownership in the employees’ invention and one another and seeking solutions to com- the attendant consequence of reducing the plex problems. As Alfred Kuhn (1996) noted individual inventor to a hired worker. in a groundbreaking treatise: The inescapable conclusion is that like the “scientists” in the laboratories of the industrialized states who exchange informa- [T]he transformation of technology and of economic society during the last century tion, collective groups of traditional know- negates completely the patent law assump- ledge holders and practitioners also exchange tion as to the nature of the inventive ideas to resolve and find solutions to deep and process . . . in the modern research labor- complex problems relating to biological atories, tens, hundreds of men focus, upon resources. As the Crucible Group recently 324 9780415418768_4_022.qxd 26/11/2008 02:40PM Page 325

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observed: “Farmer’s fields and forests are of their medicinal knowledge and herbal laboratories. Farmers and healers are remedies. Secrecy of their knowledge guar- researchers. Every season is an experiment.” antees their power and influence in the local If corporate inventors are honored with communities. Indeed, the rituals, magic, and patents, a fortiori, their informal counterparts spirituality that often surround the practice of deserve the same privileges. traditional healing is, in addition to myriad Further, just like the modern patent law other societal functions, a critical aspect of the created the fiction of corporate “creative or “secrecy regimes”17 imposed on such bio- inventive” genius to serve social and economic cultural knowledge by herbalists and healers. imperatives, non-western jurisprudence has Second, assuming, but not conceding that legal personalities serving same or similar all traditional bio-cultural knowledge is in ends. These artificial legal personas or juri- the public domain, placement of such know- dical entities are usually designed for the ledge in the public domain by overzeal- regulation of diverse functions including ous researchers without the consent of native land ownership, succession, inheritance, etc. healers, does not, ipso facto, extinguish a right Indeed, the category of legal persons is not of ownership to intellectual property. This closed. Yet, domestic laws in Africa have principle is the rationale for the regime of prior largely maintained colonially inspired categor- informed consent (PIC) in contemporary ies of legal personalities, thus further enabling international law on access to traditional and the irrelevance of the patent system to local bio-cultural knowledge. Ironically, it is often needs and realities. the same information or knowledge construed The alleged boundary between individual to be in the “public domain” in the so-called and collective creativity is a conflation of com- traditional societies, which affords the basis for munalism with the notion of collective some patents on bio-cultural resources in some inventions. Often, an individual in the com- other countries, particularly, Japan and the munity of persons may derive inspiration from United States. Third, the concept of public pre-existing knowledge, just like his western domain is an occidental legal principle that counterpart, and from thence, invent some- should not be foisted on traditional societies thing “of intricate detail and complexity, without informed consent. reflecting great skill and originality.”16 In Beyond the problem of what constitutes short, “gross generalizations about the irre- public domain, another aspect of the prob- concilability of collective and individual” lem of novelty is the mistaken assumption by rights or contributions towards inventiveness many policymakers that there is a universal can no longer be maintained in the context consensus on the concept of novelty as a cri- of present realities (McDonald 1998). terion in granting patents. A careful analysis Another Eurocentric aspect of the patent of international patent law and practice does regime is the conception of what constitutes not support the notion of absolute global nov- public domain for the purposes of evaluating elty in the determination of what constitutes novelty. The prevalent notion is that bio- a patentable invention. The criterion of nov- cultural knowledge is a matter of common elty is regrettably, geographically relative and knowledge and resides in the public domain. arbitrary. While this situation is to be decried Despite its strong basis in contemporary and needs to be changed, it remains the law patent law, it is argued that this tenet of patent in many jurisdictions. Neither the TRIPs law when uncritically applied to African set- Agreement nor any other relevant international tings is flawed on three grounds. First, not all legal instrument contains any definition of the traditional or informal bio-cultural knowledge concept of novelty. As the United Nations is in the public domain. For instance, native Conference on Trade and Development healers, in particular, hardly reveal the secrets (UNCTAD) recently observed: “[T]here is no 325 9780415418768_4_022.qxd 27/11/2008 11:35 AM Page 326

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agreed international standard of absolute no- policies of the fledgling European industrial velty and, within limits, member countries may states; yet it has legislative force by virtue of apply the different approaches recognized in section 102 of the United States Patent Act domestic patent laws” (UNCTAD 1996: 32). (1982; see also Gratwick 1972).18 The trouble The problem is that no binding interna- with Section 102 of Title 35 of the United tional custom or legislative instrument has yet States Code and similar provisions elsewhere demarcated the boundaries of the acceptable is that it confers juridical sanctity on the phe- “limits” of domestic jurisdictional prerogative nomenon of bio-piracy by legalizing the in defining novelty and prior art. As Richard process by which traditional or bio-cultural Gardiner (1994: 256) has lamented: knowledge may be appropriated from one country without acknowledgment or com- [I]n the light of uncertainty as what it is that pensation. The existence of a dual regime on is protected by patent law (both in the case novelty is therefore a blemish on the inter- of what required element of inventiveness national patent system. Commenting on this, is central to patentability and the extent of Jain (1999: 781) notes that: what the patent actually protects), readers of the Reports of Patent cases might well reach the conclusion that the state of the [P]articularly worrisome are the ramifica- law in this field depends on how key con- tions of Section 102 of the United States cepts strike the judge hearing a cause or Patent Act. Under this provision, whereas fit the line of reasoning . . . invention . . . prior knowledge, use or invention in the idea . . . ingenuity . . . and discovery are United States can be used as an evidence to used by the courts in conjunction with nov- invalidate a U.S. patent for lack of novelty, elty and the notion of what is inventive or similar foreign activity can not be used against not obvious in unpredictable ways. a U.S. patent. The only foreign evidence which qualifies to invalidate U.S. patents is In addition to the definitional anarchy on an actual patent, a known or used inven- novelty, an international juridical bifurcation tion or an invention that was described arising from the United States and European in a printed publication. This technically patent law jurisprudence on novelty and narrow interpretation of “novelty” remains prior art has not yet been bridged. As the wedded to the concept of tangibility and United States Supreme Court held in Gayler blind to the oral traditions and knowledge of genetic resources, resources which vs. Wilder (1850, emphasis added): largely flourish in biodiversity-rich areas. [I]f the foreign invention had been printed or patented, it was already given to the world In effect, for the purposes of determining nov- and open to the people of this country as elty of invention, there are parallel regimes well as of others, upon reasonable inquiry on publication, that is, de facto publication and ...but if the foreign discovery is not patented, de jure publication.19 Given that innovations nor described in any printed publication, it might in the informal paradigm are largely conducted be known and used in remote places for ages, and in traditions where the keeping of formalized the people of this country be unable to profit by data in books is the exception rather than it. The means of obtaining knowledge would not the rule, the seeming triteness of such bio- be within their reach; and as far as their interest is concerned, it would be the same thing as if the cultural knowledge in such societies would improvement had never been discovered. not debar such bio-cultural knowledge from being construed as “novel” in another coun- This technical and geographically relative try like the United States (Oddi 1989). The approach to construing the concept of paradox is that such bio-cultural knowledge novelty and prior art is hardly dissimilar to would be ineligible for patent protection in the medieval and eighteenth-century patent the home country. 326 9780415418768_4_022.qxd 27/11/2008 11:36 AM Page 327

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Hence, what is an obvious invention or For example, until 1962, patent law in prior art in India, as the controversy over Neem French Africa was governed by French laws. derivatives and Turmeric patents demonstrate Administratively, the French National Patent ( Jain 1999), may be construed as a novel Rights Institute (INPI) was the national art in the United States of America for the authority for members of the African French purposes of obtaining a patent grant. Yet, in Union.20 Similarly, barely two decades ago, both cases, the bio-cultural products were a person wishing to obtain patent protection unjustly patented in the United States. Con- in most British colonies in Africa could do so sequently, the blurring of the law on novelty by reregistering a British patent in the local permits, or even encourages some biotech- office in the particular African country. nology and pharmaceutical firms to privatize In effect, both the substance and process traditional bio-cultural knowledge through a regulating IPR governance in Africa were cosmetic repackaging of those resources and appendages to colonial dictates and preferences. knowledge. This phenomenon often brings Clearly, the internationalization of IPR disrepute to the patent system in Third which started in Europe in the nineteenth World countries. Thus, it is evident that at century and culminated with the conclusion the doctrinal level, the ideological values and of the Paris Convention and the Berne worldview encoded in the IPR of the colo- Conventions was an extension of colonial nizing European powers were often alien diktat in African IPR governance (Adewopo and to indigenous African ethos and economic Oguamanam 1999). African countries did not traditions (Farley 1997). participate meaningfully in the law-making process at the international level. African states have largely played the role of passive Echoes of the past recipients of laws and norms rather than co-participants in the creation of both the Leaving doctrinal obstacles aside, at the insti- content and structure of international IPR tutional level, the complications resulting regimes. It seems obvious that the alienation from the colonial scramble for Africa are of African states from IPR law-making pro- reflected in the discordant and often competing cesses is implicated in the non-protection of IPR laws and institutions prevalent in de- indigenous categories of IPR such as folklore colonized African countries. For example, (Kuruk 1999). English common law countries in Africa are Regrettably, the process of political inde- structurally different from Francophone pendence for African colonial states marked African countries. While the latter operate the by the retreat of most European settlers to French civil law system, the former apply com- Europe in the 1960s did not bring about mon law plus a mix of contemporary legis- radical changes. Indeed, shortly after formal lation. Another layer of colonial fissure is decolonization, with the singular exception of evident in the Roman-Germanic legal system South Africa, none of the newly-decolonized operating in lusophone countries in Africa. African states operated functional patent The result is a gaggle of IPR laws and insti- offices. Save for trademarks, which were used tutions in Africa that are, in several instances, to protect merchandise from the imperial verbatim reproductions of IPR laws in the states, there was little domestic efforts on the colonial states plus a mix of recent domestic protection of IPR. legislation. At the continental and macro levels, the As already noted in the foregoing para- colonial rupture of Africa left in its wake graphs, European IPR laws were often re- fissured and competing continental institu- enacted in African colonies without regard tions and frameworks for the regulation and to local sensibilities and practical realities. governance of IPR. The two continental 327 9780415418768_4_022.qxd 26/11/2008 02:40PM Page 328

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organizations that deal in IPR are (1) African the Lusaka Agreement was amended in Intellectual Property Organization (OAPI)21 order to admit all African states interested. and (2) the African Regional Industrial Pro- This change gave birth to the African perty Organization (ARIPO). The former Regional Industrial Property Organization comprises 14 French colonies in Africa (ARIPO).25 The Harare Protocol adopted (North Africa excluded). The French by ARIPO members in 1982 empowers the colonies decided in 1962 to create the Afri- ARIPO office to receive and process patent can and Malagasy Patent Rights Authority by and industrial design applications on behalf the agreement known as the Libreville of states party to the Protocol. A patent Agreement. The Libreville Agreement was granted under the Harare Protocol has the signed to form the African Malagasy Patent same effect in the designated contracting Rights Authority (OAMPI). The Libreville state as a national patent. The Banjul Agreement was based on three fundamental Protocol on marks was adopted by the principles: (1) the adoption of a uniform leg- administrative council of ARIPO in 1993. It islation by the putting in place and applica- establishes a trademark filing system similar to tion of common administrative procedures the Harare Protocol. The Protocol came resulting from a uniform system of patent rights into effect on March 6, 1997. protection; (2) the creation of a common Northern African countries are a reflec- authority for each of the member states; (3) tion of historical patterns of conquests, colo- centralization of procedures. nialism, Arabization, and Islamization of the Following the withdrawal of Malagasy Maghreb, Nile Valleys, and the Saharan parts and the need to expand coverage to other of the African continent. The Arab conquests categories of intellectual property, the Lib- of the seventh century ad, European (mainly reville Agreement was revised and a new French) colonialism of the eighteenth cen- convention signed in Bangui on March 2, tury have largely defined the legal framework 1977 gave birth to the African Intellectual of northern African countries. With specific Property Rights Organization (OAPI).22 reference to Algeria, there are various legis- The Bangui Agreement deals with the fol- lations dealing respectively with patents,26 lowing categories of intellectual property: trademarks,27 industrial designs,28 copy- patents; utility models, trademarks and ser- rights,29 appellations of origin,30 and layout vice marks; industrial designs, trade names; designs of integrated circuits.31 Morocco was appellations of origin; and copyright. With until 1953, a French colony. Consequently, respect to trademarks, the OAPI Agreement Morocco has been largely influenced by provides that only visible marks are registra- French civil law traditions. ble (Kongolo 1999). The OAPI office also The colonial imprint on West African serves as the registration office for OAPI mem- countries is palpable in contemporary times. bers of the Trademark Registration Treaty.23 Throughout the colonial era, Britain controlled In addition, members of OAPI submit a wide swath of West Africa including The notifications of their domestic legislation to Gambia, Ghana, Nigeria, and Sierra Leone. the WIPO.24 The Bangui Agreement was By way of contrast, France controlled amended in 1999 to make it TRIPs com- Burkina Faso, Cote d’Ivoire, Guinea, Mali, pliant. The revised version of the Bangui Niger, and Senegal. The remaining territ- Agreement entered into force for all OAPI ories were controlled by Portugal (in Guinea members in early 2002 following ratification Bissau) and Germany (Togo until the end of by 16 OAPI member states. the First World War). Liberia is the only coun- For most of Anglophone Africa, there was try in West Africa to escape direct imperial the Lusaka Agreement of 1976 which came control although it saw itself as an American into effect in 1978. In December 1985, outpost in Africa. 328 9780415418768_4_022.qxd 26/11/2008 02:40PM Page 329

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Eastern Africa is comprised of Burundi, “development” and “civilization” in Africa Comoros, Djibouti, Eritrea, Ethiopia, is increasingly becoming untenable. The Kenya, Madagascar, Malawi, Mauritius, chasm between the promises of IPR laws and Mozambique, Rwanda, Seychelles, Somalia, industrial development in Africa may also be Uganda, United Republic of Tanzania, a result of institutional problems and challenges Zambia, and Zimbabwe. In many instances, rather than a demerit in the laws themselves. national laws on IPR were hitherto However, the analysis here does suggest anchored on colonial British laws that have that IPR laws are not enough in and of them- now been reformed to meet the minimum selves to transform a politically unstable and standards set out in the TRIPs agreement. economically dysfunctional continent into Central Africa comprises Angola, an innovative and technologically advanced Cameroon, Central African Republic, society. Chad, Congo, Democratic Republic of the In sum, it seems that the colonial origins Congo, Equatorial Guinea, Gabon, and the of IPR in Africa have cast a shadow on the twin islands of Sao Tome and Principe. The contemporary development of IPR regimes contextual circumstances and experiential in the continent. Perhaps it is time for exigencies in Central Africa are imperative fac- African countries to focus on those industrial tors in any useful analysis of the colonial impact and economic activities in Africa that would of domestic IPR regimes in Central African best respond to certain types of IPR. For states. The situation in Cameroon is some- example, many African state economies are what different, largely because Cameroon has largely agrarian (Reichman 1995). In this been one of the most politically stable coun- regard, it would be sensible to adopt and tries in Africa. The situation in Gabon is akin implement IPR regimes that are proven to to what obtains in Cameroon, CAR, Chad, be responsive to agriculture. The existence of and the Congo. Gabon’s laws on patents, colonial IPR laws in Africa has not positively trademarks, and industrial designs are impacted on the lives of ordinary Africans. premised on the Bangui Agreement as last What is perhaps needed is a frank appraisal amended in February 1999. Southern Africa of the costs and beneﬁts of those colonial is composed of Botswana, Lesotho, Namibia, IPR laws in Africa. Where necessary, such South Africa, and Swaziland. Save for South regimes should be re-structured to respond to Africa with a very diverse industrial base, local needs and imperatives (Oddi 1996). much of southern Africa is dependent on mining, agriculture, and tourism. Notes

Conclusion 1 For a definition of the Third World, see Rajagopal 1998–1999. (Contending that the From the foregoing, it seems clear that the concept of global south or Third World origins of IPR in African states are directly should not be inflexibly moored to a fixed traceable to the colonial conquest and geographical location.) For a consideration of the complexity of the Third World, see domination of Africa. While the arguments Mickelson 1998: 360. made in the 1800s for the imposition of 2 Agreement Establishing the World Trade Eurocentric IPR laws and institutions in Organization, April 15, 1994, 33 I.L.M. 81, Africa have faded and lost their appeal, it Available at http://www.wto.org/english/ remains a paradox that African states have docs_e/legal_e/04-wto.pdf. 3 The term “patent” as an adjective derives from not re-examined the utility and relevance of the Latin word patere which means, “to be those colonial legal regimes. The hope that open.” When used as a noun, it means an open Eurocentric laws must ipso facto give rise to letter addressed to the public. 329 9780415418768_4_022.qxd 26/11/2008 02:40PM Page 330

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4 Prior to the modern era of serious inroads by mountable problems capable of defeating the the patent system into scientific discourse, concept of community patents. Rules of open exchange of scientific discoveries and ideas membership of a corporate organization, like was the norm. As Stephen Brush (1996: 149) traditional societies are not necessarily uniform has noted: “[S]cience is the long conversation but a prerogative of national laws and the inter- among members of . . . community ...the nal constitution of that corporate body or glitter of science to many practitioners is its alter- traditional society. native to pecuniary reward.” 17 World Intellectual Property Organization 5 United States Patent Act (1982) 35 U.S.C. 101. (2007) WIPO Report. (See also Gollin 1991.) 18 Further to the WTO, the United States has 6 Attorney-General vs. Adelaide Steamship Co. amended this section but the amendment [1913] Appeal Cases 781. limits it to WTO member states only! 7 The literature on this burgeoning school of 19 There is a commonly held view that traditional thought is quite remarkable. See, generally, knowledge is uncodified. This is far from the Greaves 1994. truth, in addition to the Ayurvedic System 8 For example, when it became obvious to the which is codified in 54 authoritative texts, the industrialized states that the existing patent re- Siddha System is codified in 29 authoritative gime could not protect computer chip makers, texts, and the Unani Tibb tradition in 13. In the Washington Semiconductor Treaty was India, the First Schedule of the Drugs and quickly concluded and ratified. Meanwhile, as Cosmetics Act, No. 23 of 1940, as amended Peter Drahos (1997) has noted: “[I]n contrast, by the Drugs and Cosmetics (Amendment) Act the issue of protection for indigenous know- No. 71 of 1986, specifies the authoritative books ledge has largely remained just that, an issue.” of the three systems. 9 Traditional ecological knowledge may be 20 Otherwise known as Union Française, the defined as “a body of knowledge built by a group is composed of 16 French-speaking group of people through generations living in African colonies except French North Africa. close contact with nature. It includes a system These are Benin, Burkina Faso, Cameroon, of classification, as set of empirical observations Central African Republic, Chad, Congo, about the local environment, and as a system Cote d’Ivoire, Equatorial Guinea, Gabon, of self-management that governs resource Guinea, Guinea Bissau, Mali, Mauritania, use” ( Johnson 1992: 2). Niger, Senegal, and Togo. 10 Preamble, CBD, supra. 21 The acronym OAPI is derived from the French 11 CBD, supra. name of the organization, which is Organisa- 12 CBD, supra. tion Africaine de la Propriété Intellectuelle. OAPI 13 Article 8( j) of the CBD, supra. is constituted by French-speaking countries. 14 But see Merges 1988; Scalise and Nugent 1995. 22 Article 19 Paris Convention permits members 15 In virtually every patent jurisdiction in the to belong to regional IP groupings provided world, an employer owns the patent right to there is no contradiction between the Paris an employee’s invention if the employer is hired norms and the obligations created by such to invent or the invention is made in the course regional groupings. of the employment using his employers’ tools. 23 Art. 2(3)(4) of the Trademark Registration However, under some narrow circumstances, Treaty. the employee may own the invention. 24 Benin, Congo, Cote d’Ivoire, Gabon, Similarly, governments and their research Guinea, Guinea Bissau, Mali, Mauritania, institutions can acquire the inventions of their Niger, Senegal, and Togo have all notified empoyees (See Vaver 1997: 147–9.) WIPO on their domestic legislations. Chad 16 See Justice von Doussa, in Milpurrurru vs. simply affirmed that it will abide by the terms Indofurn 1995: 216. In the preparation of this of the TRIPs Agreement. chapter, Tomme Rosanne-Young opined 25 There are currently 15 members of ARIPO. that corporate inventions are put into use when See www.aripo.wipo.net. such inventions are completely invented 26 Law No. 03-19, November 2003. whereas (as she argues), traditional knowledge 27 Law No. 03-18, November 2003. inventions seem to come into existence after 28 Decree No. 66-87, April 1966. being in use. Second, that corporate mem- 29 Executive Decree No. 98-366, November bership, unlike traditional societies is fixed and 1998. determinate. With due deference, the suggested 30 Decree No. 76-121, July 1976. distinctions, if at all they exist, are not insur- 31 Law No. 03-20, November 2003.

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23 Indigenous rights claims in international law: self-determination, culture, and development

Karen Engle

This chapter examines the emergence and applica- its advocates often seek. Imbedded in that tion of the human right to culture as the primary question is another, about the similarities and legal and political strategy for making rights claims differences between right to culture and self- on behalf of indigenous peoples. It discusses the dif- determination claims made by indigenous ferent ways in which advocates invoke the right to advocates. culture, presenting a typology ranging from claims The right to culture has not totally replaced that make a relatively small claim on the state in calls for self-determination in indigenous terms of resource sharing and development (culture advocacy, but it has provided the domin- as heritage) to those that pose significant challenges ant discursive and legal vehicle for making to the neo-liberal state (culture as land and culture political and economic (as well as cultural) as development). I consider the successes and dark rights claims on behalf of indigenous peoples. sides of each of these uses of the right to culture and When advocates invoke the right to culture, caution indigenous rights advocates against the temp- however, they do so in multiple ways. I de- tation to embrace “strategic essentialism.” vote much of this chapter to examining and delineating those different uses of culture, pre- For the past 20 years, tribal representatives, senting a typology ranging from those claims indigenous rights activists, lawyers, anthro- that make a relatively small claim on the state pologists, and even most states have largely in terms of resource sharing and development coalesced around an understanding that the to those that pose significant challenges to the right to culture provides an effective means neo-liberal state. Nearly all of these claims rely to protect the rights of indigenous peoples. to a certain extent on overly stereotyped and This chapter traces how that coalescence essentialized ideas of indigenous culture. occurred by studying how the human right to Through an exploration of potential costs culture replaced the right to self-determina- and benefits of each of these uses of culture, tion as the primary legal and political strategy I aim to urge advocates away from the for indigenous rights advocates. In doing acceptance and deployment of essentialized so, it raises the question whether the human notions of culture. I argue that “strategic right to culture is robust enough to achieve essentialism,” the intentional use of essential- the types of economic and political goals that ized versions of indigenous cultures to claim

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indigenous rights under a right-to-culture International Labor Convention framework, often has the effect of restrict- (No. 107) ing rather than broadening indigenous economic, political, and territorial autonomy.1 In the 1950s, the ILO became concerned with I therefore call for a consideration of con- the failure of indigenous peoples to integrate structivism in legal and political advocacy into the national population. Failure of such alongside a more explicit statement of or at integration was seen to have social and eco- least debate over the types of economic and nomic effects, on indigenous populations political claim to autonomy that advocates aim as well as on the nation states they inhabited. to achieve. In 1957, the ILO drafted Convention (No. 107), which, according to Douglas Sanders, saw “indigenous populations as ‘less Indigenous advocacy based advanced’ than other sectors of national soci- on assimilation and ety. They were seen as archaic lumps in the self-determination body politic, in need of modernization and integration” (Sanders 1983: 19).2 When, in the 1970s, indigenous groups Although most of the Convention was began to organize around a pan-indigenist aimed at measures to integrate indigenous ideology, they had three primary legal tools populations, it did not call for complete available to them for consideration: (1) the assimilation. In fact, an often overlooked 1957 International Labor Convention (No. provision is Article 4, which calls for “due 107); (2) the right to self-determination, account” to be “taken of the cultural and reli- with or without a right to state sovereignty; gious values and of the forms of social con- (3) human rights. While ILO Convention trol existing among these populations” and (No. 107) was the only international legal “the danger involved in disrupting the val- document specifically focusing on indigenous ues and institutions of the said populations” peoples, it was rejected as a tool for indi- (International Labor Organization No. 107 genous liberation because of its integrationist 1957: Art. 4(a), 4(b)). Moreover, it recognized and assimilationist aims. Self-determination indigenous peoples’ right to collective lands arguments were dominant for some time they had traditionally occupied (International but, as they gradually moved away from an Labor Organization No. 107 1957: Art. 11). insistence on statehood, the claims began to That said, a new economic order was clearly be articulated in human rights terms, even as imagined, and eventually – it was thought – a human right to self-determination. The indigenous peoples would not require atten- human rights rubric that seems to have tion to their cultures or traditions. Neither achieved the most traction, however, has been would they need special protections provided the human right to culture. by the Convention (International Labor That said, self-determination continues to Organization No. 107 1959: Art. 3). The idea be advocated and was at the heart of many was to “mitigat[e] the difficulties experi- debates over the recently adopted United enced by these populations in adjusting Nations General Assembly Resolution on the themselves to new conditions of life and work” Declaration on the Rights of Indigenous (International Labor Organization No. 107 Peoples. Thus, before turning to the uses of 1959: Art. 4(c)). Similarly, land rights were culture in the next section, I briefly consider subject to the “interest of national economic here these first two options and the reasons development or . . . the health of the said they seem to have been rejected as strong tools populations” (International Labor Organiza- for indigenous rights advocacy. tion No. 107 1959: Art. 12).

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In the 1970s pan-indigenous movement many indigenous advocates saw the possibil- advocates largely rejected the Conven- ity for a similar future for indigenous peoples. tion. These advocates were explicitly anti- Particularly in former British colonies, self- assimilationist and sought consciously to determination – meaning a right to secession reclaim and preserve cultural practices seen and statehood – was the prevailing paradigm by settlers and missionaries as “backward.” for much indigenous advocacy throughout From their perspective, ILO Convention the 1970s and continued to struggle for (No. 107) represented a perpetuation of the dominance into the late 1980s. Advocates for civilizing mission because of its support for this state-end model sometimes argued that conventional models of industrialized eco- indigenous groups constituted independent nomic development and its explicit attempt states under the Montivedeo Convention of to assimilate indigenous people(s) into those 1933 or “peoples” under Chapter XI of the models. In the context of Latin America, UN Charter. Such recognition would have the Convention was considered to be a entitled them to exclusive dominance over reflection of indigenismo, an ideology that territory and (at least to the extent decolon- dictated many Latin American state policies ized states were getting it) control over their toward indigenous peoples in the first half of natural resources. This argument met with the twentieth century. Peter Wade explains strong resistance by states with indigenous indigenismo in the context of Mexico and Peru: populations and, as early as the meeting of “From the 1920s, the indian became a prime the first United Nations Working Group on symbol of national identity . . . both countries Indigenous Populations, was a major point of created government departments for indi- contention. It continues to animate debates genous affairs, while Peru recognised the about the meaning and appropriateness of de- ‘indigenous community’ as a legal entity and fining indigenous rights in self-determination Mexico created academic institutions dedi- terms. cated to the study of indigenous peoples . . . Until September 2007, when the United [T]he central notion was that indians need Nations General Assembly passed the Declar- special recognition and that special values ation on the Rights of Indigenous Peoples, attached to them” (Wade 1997: 32). there were no internationally accepted The ILO revisited its approach, and pro- documents or instruments that applied the duced a new Convention on indigenous language of self-determination to indigenous peoples in 1989, ILO Convention (No. peoples. Indeed, although the ILO recon- 169). As discussed in the next section, that sidered its integrationist approach toward Convention largely approaches indigenous indigenous peoples in the 1980s, states refused rights from a cultural rights perspective. to agree to a Convention that included the term “self-determination.” Neither that term nor “autonomy” appears in ILO Conven- Self-determination tion (No. 169) (International Labor Organ- ization No. 169 1989: 8(2)). In contrast, Self-determination as state Article 3 of the newly adopted Declaration sovereignty on the Rights of Indigenous Peoples repeats Somewhat surprisingly from today’s vantage the language of common Article 1 of the point, in the 1970s, the right to self-deter- International Convention on Civil and Pol- mination – including the right to secession or itical Rights and the International Conven- state sovereignty – seemed a viable alternat- tion on Economic, Social and Cultural ive for indigenous peoples. Coming on the Rights, stating: “Indigenous peoples have heels of a large wave of decolonization, the right of self-determination. By virtue

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of that right they freely determine their The concerns expressed by the African states political status and freely pursue their eco- were echoed in the statements of others who nomic, social and cultural development” opposed the Declaration. The New Zealand (Declaration on the Rights of Indigenous representative, for example, issued a state- Peoples 2007: Art. 3). The earlier Conven- ment on behalf of Australia, New Zealand, tions had declared this right one that belonged and the United States expressing concern that to “all peoples” (ICCPR 1966: Art. 1; ICESR “[s]elf-determination . . . could be misre- 1966: Art. 1); by replacing the word “all” with presented as conferring a unilateral right of “indigenous,” the Declaration placed indi- self-determination and possible secession genous peoples among those entitled to self- upon a specific subset of the national popu- determination. Debate over the potential lace, thus threatening the political unity, ter- meaning of self-determination in that context ritorial integrity, and the stability of existing was central to the failure of states to agree UN member states” (Banks 2006). on a text for the Declaration for over two Yet another compromise ensued to decades, and to the final opposition to the respond to these concerns. Article 46 of the Declaration by the four states that voted resolution that finally passed added language against it – United States, Canada, Australia specifically indicating that the Declaration and New Zealand. These states, and many should not be “construed as authorizing others along the way, have expressed concern or encouraging any action which would that the term might be read to grant the right dismember or impair totally or in part, the of statehood. territorial integrity or political unity of sov- Article 3 has been in every version of the ereign and independent States.” Although Declaration over the years, but its qualifying this compromise language gave a number of and limiting language has been the subject activists pause, most ultimately supported it. of much controversy. In 2005 the chair of At the same time, it was not sufficient to the Working Group on Indigenous Popula- convince all countries concerned about sov- tions suggested a list of compromises on ereignty issues to vote in favor. In its official the Draft Declaration to push its adoption observations on the Declaration, the United through the new Human Rights Council. States explained that, despite limitations to Many of the compromises limited the mean- Article 3 expressed in the Declaration: “We ing of self-determination. This new draft of find [the] approach [of reproducing common the Declaration was presented to the Human Article 1 in Article 3] on a topic that involves Rights Council, adopted by the Council in the foundation of international relations and June 2006, and sent to the General Assembly. stability (i.e. the political unity and territor- Ultimately the compromises were not ial integrity of nation-states) to be ill advised sufficient for the General Assembly. In late and likely to result in confusion and disputes” November 2006 the Third Committee (Hagen 2007). voted in favor of a non-action resolution on the Declaration, deferring consideration of Self-determination as autonomy the Declaration for a later date. The non- within a state action resolution was formally proposed by Namibia, on behalf of the Group of African As the preceding discussion indicates, to the States, in part on the ground that “the vast extent that indigenous peoples are considered majority of the peoples of Africa are indi- to possess the right to self-determination, genous to the African Continent,” and that the term has taken on a new hue from that self-determination “only applies to nations which initially animated indigenous rights trying to free themselves from the yoke of advocacy. The consensus today, even among colonialism” (Cherrington 2006; Lutz 2007a). most advocates, is that self-determination does 334 9780415418768_4_023.qxd 26/11/2008 02:40PM Page 335

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not include a right to statehood. Rather, self- Declaration, and only Colombia abstained. determination is generally invoked to make There seems to be little threat in Latin claims for various forms of autonomy within America that indigenous groups will deploy (and sometimes across) already defined state self-determination in a way that would chal- boundaries. The Indigenous Peoples of Africa lenge “territorial integrity.” Coordinating Committee, for example, at- The Martinez Cobo Report, in its call for tempted to assuage the African Union’s self-determination, concluded that human recent opposition to the Declaration on the rights standards were inadequate for the pro- Rights of Indigenous Peoples by making tection of indigenous peoples (Martinez Cobo it clear that it had no intention of reading 1984: para. 580). Over the ensuing years, nev- self-determination broadly. The Committee ertheless, many of those who supported this stated emphatically “that no single African version of self-determination that was divorced indigenous community claims statehood.” from secession began to advocate for legal (Indigenous Peoples of Africa Coordinating recognition under human rights models. Committee 2006). These models included the human right to The deployment of this softer form of self- self-determination, but much of the energy determination in the indigenous context is went toward a human right to culture. not new. The Martinez Cobo Report, commissioned by the UN in 1971 and eventually fully published in 1984, for example states Indigenous advocacy’s turn to that “self-determination, in its many forms, the human right to culture must be recognized as the basic precondition for the enjoyment by indigenous peoples of Although the human right to culture might their fundamental rights and the determina- today seem an obvious and accepted mech- tion of their own future” (Martinez Cobo anism for the protection of indigenous rights, 1984: para. 2). Yet the Report distances itself it was not an obvious choice for indigenous from the strong self-determination claim rights advocates. If human rights are “a pro- through its definition of the term. For the duct of modern, post-Enlightenment, liberal Report, self-determination “constitutes the secular humanism . . . elevat[ing] the individ- exercise of free choice by indigenous peoples ual to the point that the group is forgotten” who must, to a large extent, create the (Zion 1992: 211), they would seem not only specific context of this principle, which to conflict with, but to threaten indigenous [does] not necessarily include the right to culture. Or put another way, to the extent that secede. This right may in fact be expressed human rights are inseparable from the civi- in various forms of autonomy within the State” lizing mission of colonial days or the liberal- (Martinez Cobo 1984: para. 581). izing mission of neocolonialism, they would In Latin America, indigenous groups appear to offer little (but a site of resistance) have rarely made strong demands for self- to those whose aim is to reject assimilation. determination. Even at the beginning of For these reasons, indigenous rights advo- panindigenous movements in Latin America cates were skeptical of human rights legal in the 1970s, indigenous groups and coalitions and political discourse from the beginning. In tended to make claims for territorial auto- 1947, for example, the American Anthropo- nomy for indigenous peoples in those states logical Association warned the United Nations in which indigenous peoples constituted a against adopting a Universal Declaration on minority, and for control over existing state Human Rights that would fail to take into structures where they made up a majority account the extent to which cultures varied of the population.3 Perhaps for this reason, in their values and norms (American Anthro- no Latin American states voted against the pological Association 1947: 539). Such a 335 9780415418768_4_023.qxd 26/11/2008 02:40PM Page 336

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failure, the association suggested, would model. They mediated the tension they had simply perpetuate the “white man’s burden” earlier experienced between human rights assumed under missionary practices and colo- and culture by calling for a human right to nialism (American Anthropological Associ- culture. For some, this move was precipitated ation 1947: 540). In this view, human rights by decisions by the Human Rights Com- was a modernizing move that would strip mittee, the body that considers claims indigenous groups of their culture by impos- brought under the Optional Protocol of the ing apparently universal values on their ways ICCPR. Advocates brought a number of of life. indigenous rights claims to the Committee As human rights law developed, little under Article 1’s self-determination provision. attention was paid to indigenous rights. In The Committee denied admissibility under this fact, rights were seen to be individual as well provision, stating that self-determination as universal, primarily conferred upon indi- could not provide the basis for a claim, given viduals vis à vis the state. Although indi- that the Optional Protocol only allows for genous rights were not on the table either individual claims. In one case, however, it explicitly or implicitly, significant consider- decided sua sponte, to consider the claim ation was given early on to the issue of whether under Article 27’s protection of the right to to include minority rights in human rights culture (Scheinin 2000a: 179–94).4 Advocates treaties. Advocates for ethnic minorities, also began to use various protections of the particularly those within European states in right to culture embodied in the ILO Con- the post-war period, sought to claim a right vention (No. 169). to culture during the drafting of the Today, the human right to culture strat- Universal Declaration of Human Rights egy is the most often used terrain on which (Morsink 1999: 301). Specific protection of individuals (on behalf of or sometimes even collective cultural rights for minorities was against the group) bring their legal claims. rejected, however, for language saying that Importantly, indigenous rights advocates “everyone” has a right to culture (Universal have not generally considered the use of the Declaration of Human Rights 1948: Article right to culture as a compromise. Instead, they 27). have conceived of the right and its potential In 1966, when the United Nations for protection rather broadly. James Anaya, adopted the International Covenant on Civil for example, even while advocating for a shift and Political Rights (ICCPR), it adopted from a sovereignty to a human rights focus language on cultural rights that was more in the early 1990s, did so in part because specific than that in the Universal Declara- he believed that Article 27 of the ICCPR, tion. Article 27 of the Covenant reads: “In the Convention against Genocide, and the those States in which ethnic, religious or lin- UNESCO Declaration on Cultural Co- guistic minorities exist, persons belonging to operation all evinced an “emergent human such minorities shall not be denied the right, right of cultural survival and flourishment” in community with the other members of their (Anaya 1990: 841). James Zion, who saw group, to enjoy their own culture, to profess human rights as a western enlightenment and practice their own religion, or to use their construct, also encouraged the support for own language.” Although this language was indigenous rights through “the liberal con- considered a victory by those concerned struction to the concept of ‘the right to cul- with the rights of ethnic minorities, indigen- ture’ ” (Zion 1992: 209). Even in Chiapas, ous rights advocates did not treat the langu- Mexico, where indigenous communities have age as applicable to their needs until the 1980s. declared their autonomy, they often defend In the 1980s, indigenous advocates began against threats to that autonomy at least in to see the value of the right-to-culture part by using ILO Convention (No. 169) pro- 336 9780415418768_4_023.qxd 26/11/2008 02:40PM Page 337

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visions protecting indigenous peoples’ right counts as indigenous and have limited the to the possession of their traditional lands, autonomy of those who do count. which is one part of the right to culture for Thus, each of these understandings of cul- that document. ture has its dark sides and unintended conse- But what does the right to culture mean quences with which I encourage advocates to for indigenous groups, their advocates and grapple. The ﬁrst, culture as heritage, threat- the UN? Unlike with the right to self- ens to alienate indigenous people(s) from their determination, there have been few overt heritage; the second, culture as grounded in debates about what constitutes the right to land, makes land inalienable; and the third, culture. In the next section, I brieﬂy unpack culture as development, combines with the what is meant by culture. second to limit the forms of development available to indigenous peoples.

Indigenous advocacy and the Culture as heritage meaning of the right to culture Perhaps the most commonly invoked and In this section, I identify and trace three understood meaning of culture in indigenous different understandings of culture in indi- rights advocacy is that culture is comprised genous rights advocacy: culture as intangible of practices, knowledge, and ways of seeing heritage (like a museum piece or scarce nat- the world (cosmovision) of those societies that ural resource to be preserved), culture as mate- predated the settlers. In this usage, culture is rially grounded in land (requiring communal something to be preserved, much like a and inalienable land rights to protect indige- museum piece or a scarce natural resource. nous culture), and culture as development Culture as heritage is largely intangible, (specifically ethnodevelopment). While the and, in one version, is much like intellectual first understanding of culture does little to property. It constitutes those things that question the neo-liberal state, the last two were at some point thought to be produced approaches, at least in principle, pose greater by indigenous peoples. It is the conception challenges to it. Their support for communal of culture that is most consistent with the over individual property arrangements and neo-liberal state, unlikely to require power- their interrogation of modern forms of sharing arrangements or significant resources development would seem, at least at one level, from the state. Importantly, it is the things, to be in direct opposition to neo-liberalism. and not the peoples, that are the primary object I would argue that, despite their radical of protection. One example of this version potential, strategies based on these under- of culture as heritage is the UNESCO Con- standings of culture have either failed in their vention for the Safeguarding of Intang- resistance or have been co-opted by states and ible Cultural Heritage, which protects “oral international institutions. The latter is espe- traditions and expressions, including lan- cially true with regard to ethnodevelop- guage as a vehicle of the intangible cultural ment – a concept that is now supported and heritage,” “performing arts,” “social practices, promoted by today’s World Bank (van rituals, and festive events,” “knowledge and Nieuwkoop and Uquillas 2000). This co- practices concerning nature and the universe,” optation, I would argue, is in part a conse- and “traditional craftsmanship” (Convention quence of strategic essentialism. Indigenous for the Safeguarding of Intangible Cultural movements have unwittingly set themselves Heritage 2003a: Article 2(2)). It says nothing up for certain expectations about their about ownership. “nature” and their conduct. In doing so, they To the extent that they have argued for the have often both raised the bar for who protection of indigenous heritage – includ- 337 9780415418768_4_023.qxd 26/11/2008 02:40PM Page 338

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ing both material and intangible items that heritage, for example, only extends to those reﬂect their understanding of indigenous practices that are “compatible with exist- culture – indigenous rights activists have had ing international human rights instruments, relative success. At least in principle, heritage as well as with the requirements of mutual is something that states and their non- respect among communities, groups and indigenous citizens often seem to want to individuals, and of sustainable development” protect. As Ronald Niezen explains: (Convention for the Safeguarding of Intang- ible Cultural Heritage 2003a: Article 1(1)). The moral persuasiveness of indigenous peoples’ claims to recognition derives not In the context of Australia, Elizabeth just from local grievances, but ultimately Povinelli has called this type of limitation “an from a near-universal perception of cultural invisible asterisk, a proviso, [which] hovers loss and nostalgia as well . . . It draws upon above every enunciation of indigenous cus- those who may have nothing to do with tomary law: ‘(provided [they] are not so indigenous communities or international repugnant)’ ” (Povinella 2002: 12). agencies, but who nevertheless feel strong Finally, heritage makes the least demand on stirrings of sympathy for those who repres- states of the various understandings of cul- ent a lost time of unhurried simplicity. ture we explore. It asks states to be “toler- (Niezen 2005: 593) ant,” but it also makes it so that states can both Although what Niezen refers to as a “near- appropriate and easily accommodate “herit- universal perception of cultural loss and nos- age” without acknowledging or attending talgia” has led to a variety of international, to underlying economic, social and political regional and local protections, it has its dark inequalities. sides as well. At times, the cultural heritage becomes revered over and disembodied Culture as grounded in land from the peoples. The cultural heritage and the values it is seen to hold become the objects In contrast to the heritage idea, where of protection. And what is considered the cul- knowledge is alienated for all to use, this tural heritage of a state’s or region’s initial understanding of culture often considers inhabitants might be treated as the property possession or use of a particular land or ter- and identity of the state in a contemporary ritory as the very basis of indigenous cultural form of the ideology of indigenismo found in identity. Taking seriously the material impli- many Latin American states in the early cations of a cosmovision centered on land, this decades of the twentieth century. As Peter conception belies the distinction between Wade explains of indigenismo: “Very often, it intellectual and real property by seeing was a question of exotic and romantic sym- indigenous peoples as key to the protection bolism, based more on the gloriﬁcation of the of those lands. Hence, indigenous peoples must pre-Columbian indian ancestry of the nation be permitted to stay on, perhaps even con- than on respect for contemporary indian trol, if not own, their traditional territories populations” (Wade 1997: 32). because the land (and the peoples) both hold That heritage can be alienated from the and carry forth the heritage. It is also used to groups from which it is seen to emanate pro- argue for indigenous control of territory in vides the basis for another perhaps unintended order to protect the land in accordance with consequence of this understanding of culture. the environmentally friendly cosmovision It permits states and even international insti- indigenous peoples are thought to have. This tutions to pick and choose the parts of the argument is based on an assumption that real heritage they believe is worth protecting, and Indians will use the land in traditional and sus- even to suppress those of which they do not tainable ways, and are therefore its proper approve. UNESCO’s protection of cultural guardians. 338 9780415418768_4_023.qxd 26/11/2008 02:40PM Page 339

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This idea is often reinforced by the claims in a manner that goes against their claimed of indigenous peoples themselves. Citing attachment to it, limiting the groups’ possi- statements by indigenous people, James bilities for development. The UN Report on Anaya claims that there is the wide acceptance Indigenous Peoples and their Relationship of “indigenous peoples’ articulated ideas to Land, for example, lists Canada’s refusal to of communal stewardship over land and a allow indigenous groups to use land they con- deeply felt spiritual and emotional nexus sider hunting ground in any way that would with the earth and its fruits” (Anaya 1996: 104). destroy or decrease its value for hunting as an If the cosmovision sounds too essentialist or example of discriminatory treatment with monolithic or alienated from the everyday life regard to land title. Despite its seeming crit- of many indigenous peoples, it is a deliber- icism of the practice, the Report does not ate, but not inauthentic, strategy. include in its recommendations a suggested The strategy has led to some successful land change to the practice. claims. But there are potential downsides to There are even more potentially serious it, which reflect more generally some of the political consequences, at least for some difficulties with the ways in which strategic groups, to the pursuit of a political and legal essentialism is often deployed. Basing indigen- strategy based on such a special relationship ous rights on a human right to culture as land to the land. When groups do not behave effectively prohibits indigenous peoples from towards the land in this idealized manner, they ever choosing to alienate the property they might not be considered real Indians. The own communally. Alienation is a complicated focus on occupation and use of land often leads issue, and it is not clear that indigenous to successful claims for those groups who have peoples want a right to alienate property. Were maintained and can prove their existence on they to attempt to argue for such a right, how- their ancestral lands for centuries. But it ever, they would find themselves in a serious misses the experience of many groups that bind. The moment they were to articulate a consider themselves indigenous and are con- desire for the right, they would be seen as sidered by others to be indigenous because potentially exercising it, which would go of the language they speak, the traditions they against their perceived cosmovision (com- practice, the ways and groupings in which they munal property and environmental steward- live, their internal administrative functioning ship) and thereby devalue their claim. That or their local control, but who nevertheless is, they are largely dependent on capitalist states live on land to which they have no proven for recognition of their right to culture, ancestral ties. Such groups are often on land which these states view as genuine only if the to which they were forcibly relocated or that culture includes a pre-capitalist/communal use- they occupied as a result of dislocation from based understanding of land. If they were to another territory. In such instances, these aim to participate in the market with regard groups do not necessarily have the knowledge to land, they would be seen as going against or means to subsist in ways that might be their assumed culture and beliefs, potentially considered traditional. Although Martin losing their claim to indigeneity. Scheinin refers to such groups as “patholo- Similarly, particularly without a strong gical,” in fact they are quite common understanding of self-determination, indige- (Scheinin 2000b: 171–72). nous peoples are not always given much flex- In Chiapas, for example, the Mexican ibility with regard to the use of their own land. government has been threatening to dislocate Because of their “special relationship” to the or “relocate” groups of indigenous people liv- land, they are meant to be its protectors and ing in the Montes Azules Integral Biosphere guardians. In some instances, states have pro- Reserve in the heart of the jungle which, likely hibited indigenous groups from using land not coincidentally, is also the home of the 339 9780415418768_4_023.qxd 26/11/2008 02:40PM Page 340

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Zapatista army. The allegation that indigenous By the 1970s anthropologists and indi- peoples have been using “slash and burn” farm- genous rights advocates began to take a crit- ing techniques has been tied into an argument ical view of even the seemingly benevolent about those indigenous peoples not being forms of development and of capitalism in entitled to live on the land because they are general. Capitalism began to be viewed by not native to it. some of its critics as a form of “cultural This focus on culture as land often displaces genocide” (Burger 1987: 105). Economic a focus on the reason that indigenous exploitation and cultural extermination, peoples are in need of land and resources. therefore, were inextricably connected. A It could be said that the ILO’s attempt critique of development projects from the through Convention (No. 107) to integrate 1980s elaborates at least one way of viewing indigenous people and make them a product- the connection: ive part of economic modernization at least recognized the extent to which they had The impact of such developments on long been deprived of economic resources. indigenous peoples, however, is not merely If the current anti-assimilationist/pro-culture economic. The displacement and environ- arguments recognize how neo-liberal land mental degradation brought about by reform policies have in many instances mining, deforestation, dam building or destroyed communal forms of ownership unsuitable large-scale farming, may cause hardship; but more importantly, they also and weakened the ability of indigenous sever the vital link between indigenous peoples to control their own natural resources peoples and their environment. When and maximize the productivity of the land, indigenous peoples are separated from they respond in a limited way, both in terms their land, the social and cultural cohesion of the parts of the bundle of rights that are of their communities is eroded. recognized and in terms of the groups and (Burger 1987: 105) locations where such rights are grounded. Even if indigenous peoples were not always separated from their land, capitalism required Culture as development that they have a different relationship to it. Culture and development have long been Often transforming them into laborers, it alien- linked. Western expansion – whether ated them from the work as well as the land. through Christian proselytizing, increasing of The UN Report on the Relationship to Land trade routes, or industrialization – was seen explains: “National economic development as a way to civilize or modernize indigenous schemes not only dispossess indigenous peoples peoples. Even when world opinion would of their lands, but also convert indigenous seem to have moved away from at least an peoples into cheap labourers for industry, explicit goal of either conquest or forced accul- because the exploitation of the lands and en- turation of indigenous peoples, integration vironmental degradation have deprived them was considered to lead to progress. ILO of their livelihood” (para. 64). Convention (No. 107), for example, states that Indigenous peoples had available to them part of its intent is to “assure the protection two potential strategies in the 1970s to com- of the populations concerned . . . and the bat the economic threat to their culture: they improvement of their living and working con- could ally with the third world and its class- ditions” (International Labor Organization conscious postcolonial struggles, or they No. 107 (1959): Preamble). Some argued that could assert their own indigenous cultural it was based on an understanding that develop- identity. Just as many advocates chose the ment would lead to assimilation, and even- right to culture over self-determination in the tually to greater prosperity (Kastrup 1997: 120). late 1980s and early 1990s, many ultimately 340 9780415418768_4_023.qxd 26/11/2008 02:40PM Page 341

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chose cultural identity over class conscious- ment decision-making processes or to per- ness. For movements in the English- ceived ideas about how they can and should speaking world (particularly Canada and the live their lives. United States), a “fourth world” identity With regard to government decision provided a means to ensure that the struggles making, questions about the extent to which of indigenous peoples were not subsumed indigenous peoples should be consulted in or ignored by Third World politics. In Latin development decisions on or affecting in- America, many indigenous and African- digenous lands has been at the heart of dis- descendant struggles had their roots in agreements over the interpretation of ILO peasant movements, and thus the tension Convention (No. 169) and the drafting of the between impulses to organize around cultural Declaration. In both instances, indigenous and class identity continued for a significant peoples are meant to be consulted with regard time. Different movements mediated the to development decisions affecting the areas tension in different ways, but ultimately they occupy and use, but the provisions stop cultural identity prevailed. short of granting them autonomy over those As they began to consider what would decisions. replace western development, many advocates ILO Convention No. 169 gives indigen- called for ethnodevelopment, or development ous peoples “the right to decide their own based on the traditional culture of indigenous priorities for the process of development as groups. Many argued for taking advantage it affects their lives, beliefs, institutions and of culture, resources, and sustainable atti- spiritual well-being and the lands they tudes towards the earth to permit indigenous occupy or otherwise use” (International groups to develop in culturally sensitive Labor Organization 1989: Art. 7). Yet, ways. They hoped that, without western-style national and regional entities continue to be industrialized development, indigenous able to make decisions that affect indigen- groups would be able to return to a traditional ous lands, so long as they allow indigenous and sustainable livelihood through, for ex- peoples to “participate in the formulation, ample, engaging in sustainable forms of agri- implementation and evaluation of plans and culture, hunting whales, herding reindeer, and programmes for national and regional devel- fishing from natural habitats. These attempts opment which may affect them directly” overlapped with many of the arguments (International Labor Organization 1989: based on indigenous relationship to land, and Art. 7). Much debate has ensued over the share some of the same potential benefits and requirements of this “prior consultation.” dark sides. Indigenous groups often claim that, even when Ethnodevelopment has met with mixed governments technically comply with the success. On one hand, it has appealed to requirement to consult with them, the con- environmentalists and even to international sultations in fact have little effect on govern- financial institutions such as the World ment decision making. Bank. It has provided a rubric for consider- The Declaration would seem to grant ing and promoting sustainable means of indigenous peoples less autonomy than ILO development, often based on what are con- Convention (No. 169) in this regard. Article sidered to be an indigenous understand- 20 offers a broad statement about indigenous ing of and relationship to land and the peoples’ right to development, recogniz- environment. On the other hand, indigenous ing their right “to engage freely in all their peoples have not been granted control over traditional and other economic activities” development to the extent that they have gen- (Declaration on the Rights of Indigenous erally advocated. Rather, their development Peoples 2007: Art. 21) Yet, while earlier decisions are often subject either to govern- drafts of the Declaration granted indigenous 341 9780415418768_4_023.qxd 26/11/2008 02:40PM Page 342

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peoples the “right to determine and develop lation or ability to sustain themselves eco- priorities and strategies for exercising their right nomically through traditional means. to development,” one of the compromises made to push the Declaration through the Human Rights Council changed the word- Conclusion ing to give them the right “to be actively involved in developing and determining” (Declaration Although the dark sides I have discussed in on the Rights of Indigenous Peoples 2007: this chapter lead me to be skeptical of many Art. 23; United Nations Commission on aspects of contemporary models for the pro- Human Rights 2005). That wording is in the tection of indigenous rights, I also recognize final Declaration that passed the General the extent to which these models have been Assembly, and arguably falls short of the seen as aspirational and powerful. In perhaps participation required in ILO Convention its most radical form, the right to culture makes (No. 169). heritage, land and economic development Indigenous peoples’ autonomy is often inseparable; the three constitute a rights limited in another way, which would seem package that promises to challenge dominant to be more explicitly tied to the success of distribution of wealth and resources. The ethnodevelopment as a strategy. That is, stakes to claiming indigenous identity are thus their own development is often only protected increased. Some claim indigeneity to get the to the extent that it is done in ecologically rights package, while others attach the pack- sustainable ways. In ILO Convention (No. age to some other form of minority cultural 169), for example, governments commit to alterity. For those who have not experienced “take measures, in co-operation with the the protection of even some of the most peoples concerned, to protect and preserve the basic rights included in the package, the environment of the territories they inhabit” model is particularly promising. Especially (International Labor Organization No. 169 for those minority groups who do not desire 1989: Art. 7(4)). This and similar provisions to pursue strong claims to self-determination, might sometimes put the brakes on forms of the right to culture model is attractive for unsustainable development by non-indigenous its promises for respect for difference, col- peoples on indigenous land, but it also lective title, and economic resources for limits the types of development in which development. indigenous peoples can engage. Indeed, the Based on the apparent attraction of this assumption that real Indians treat their land rights package, many advocates express an in sustainable ways sometimes comes back to understandable objection to or skepticism of haunt them and limit their possibilities for advocacy work that deconstructs “culture” or economic growth or is used to define certain questions particular uses of strategic essen- groups as non-Indian. tialism. Some believe that exposing the As with culture as land, then, culture as incongruencies or conflicts in narratives of cul- development often depends on and requires tural unity is risky, perhaps opening it up to an ongoing link between economic activity use by those who hope to deny claims to the and traditional means of livelihood. Ethno- cultural rights package. At some level, this con- development seems most appropriate as a strat- cern is persuasive. But given the ways in which egy for those groups that have a nice fit the right to culture claims, if taken seriously, between how they in fact make their liveli- threaten to limit the groups that might hood and their traditional ways of life. But it qualify for protection, overstate the cultural is more difficult to make the required link cohesion that other groups maintain, and limit when groups have been displaced from their indigenous economic, political and territorial traditional lands or no longer have the popu- autonomy, I would argue for a willingness to 342 9780415418768_4_023.qxd 26/11/2008 02:40PM Page 343

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“risk” exposure. Indeed, I would argue for and ideal that the state and its non-indigenous advocates to bring constructivism to their citizens have come to expect in the bargain. advocacy in a way that would expose not Far from playing into the hands of those only the fragile nature of the culture claims, who might aim to deny indigenous rights, but the background distributional inequal- my hope is that this constructivist approach ity that both underlies and structures the to culture would not conclude that indigen- claims. ous groups that do not meet the expecta- Without denying the power of cultural tions of cultural performance, territory or identity and the extent to which ideas about ancestry that have come to be expected by culture organize our understandings about many settler societies are inauthentic. Rather, and presentations of ourselves and others, I it would demonstrate the impossibility of that suggest we consider how assertions of cultural performance, and aim to create more, not less, (and other) identity claims often function as autonomy within and among groups by a defense mechanism to protect against real rejecting the assumption that they should only vast material and political inequalities. As with be empowered to the extent that they are car- most defense mechanisms, identity assertions riers of a culture worth preserving for the good work at some level to stave off or at least of humankind. diminish the impact of daily threats, but they accept as ongoing and unchangeable the threats against which they are initially created. Notes Studying defense mechanisms can be useful because defense mechanisms often pro- 1 The term “strategic essentialism” was coined by vide gateways for understanding underlying Gayatri Spivak in 1984. Although generated in the context of post-colonial feminist theory, it pathologies. In exploring the multiple has been employed in various disciplines and deployments of culture, I attempt better taken on a number of meanings. Spivak has since to understand the threats to which they are distanced herself from the term. For the inter- responding. Imbedded in assertions of culture view in which the idea of strategic essentialism are multiple understandings about indigenous was introduced by Spivak see Grosz and Spivak (1985: 10–12. For one of the ﬁrst discussions peoples and their traditions, but also about their in which Spivak publicly abandons the term, see relationship to and ongoing service to states, Danius, Jonsson, and Spivak) 1993: 34–5. civil society and even the future of mankind. 2 For an analysis of ILO Convention (No. 107) They are more complex and at times even that argues that the Convention saw indigenous more radical than they might originally peoples as “ignoble primitives,” as opposed to the more modern understanding of Indians as appear. To the extent, however, that they “noble primitives,” see Tennant 1994. function to protect the group, rather than trans- 3 For a collection of manifestos from the late 1970s form the underlying power structures against and early 1980s from various indigenous which they are protecting the group, I sug- organizations throughout Latin America, see gest that they might be short sighted and even Bonfíl Batalla 1981. 4 Scheinin’s analysis is based on Ominayak vs. counterproductive. Perhaps more import- Canada (1984), Kitok vs. Sweeden (1988), and antly, they appear unsustainable. To the Mikmaq vs. Canada (No. 1) (1989). In each of extent that the dominant societies in which these cases, the Art. 1 claims were considered indigenous peoples or their territories reside inadmissible because the Committee found have expressed an acknowledgment of a that the Optional Protocol under which complaints are brought only recognizes individual right to indigenous culture, including “spe- rights and, further, that individuals cannot be vic- cial” protections for that culture, few indigen- tims of a collective right to self-determination ous groups can live up to the cultural purity (Scheinin 2000a: 179–80).

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24 International refugee law: dominant and emerging approaches

Hélène Lambert

International refugee law scholarship has long been detached from political reality (Chimni dominated by a positivist tradition within which 1998: 352). Accordingly, international re- the human rights approach has now become the dom- fugee law has long been viewed as a set of inant approach. However, states and their formal rules (e.g. the 1951 Convention Relating agreements get us only so far in explaining how to the Status of Refugees) dominated by states refugee law is created and how it develops. There in their application but helped by an inter- is another layer of explanation that looks into national organization (i.e. UNHCR) in transnational activities and their effect on how law their development. However, the world has is shaped, interpreted, applied and developed. moved on and so has the way in which we This chapter therefore also explores two further emer- theorize (refugee) law. Most signiﬁcantly, the ging approaches in refugee law: the transnational human rights approach has now become approach and the participatory approach. It argues the dominant approach in refugee law. This that whereas the dominant human rights approach scholarly school has not only had an impact focuses mainly on sources and contents of rules (and on the content of refugee law, it has also their enforcement), both the transnational and par- changed the boundaries within which re- ticipatory approaches are useful in capturing the com- fugee law operates. However, the human plexities of the process of law formation and law rights approach has had little impact on the development by looking more speciﬁcally at networks “formal scheme of the Convention [which] and other participants in the process of law mak- remains one of obligations between States” ing. The challenge of contemporary international (Goodwin-Gill 2004: 7). This is because refugee law is to recognize more explicitly the role the human rights approach maintains a pri- of such networks and the soft law and norms that mary focus on rules as applied by states and they often produce. relevant international organizations. Hence it fails to challenge the way international There is little doubt that “international lawyers are trained to think “in normative and refugee law has long occupied centre stage in institutional hierarchies” (Byrne et al. 2004: refugee studies”1 (Wilde 2001: 140; Zetter 356). This chapter therefore also explores 2000) and that traditionally “its scholarship has two further emerging approaches in refugee been dominated by a positivist tradition” law that undertake such a challenge: the

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transnational approach and the participatory Positivism and the human rights approach. approach Both these approaches originate in liberal theory of international law which focuses Positivism views international law as “an on the importance of non-state actors and abstract system of rules which can be iden- progressive values in the world legal order tified, objectively interpreted, and enforced” (Lasswell and McDougal 1943; McDougal (Chimni 1998: 352; see also Hart 1998: 214; 1960; McDougal and Lasswell 1959). The Armstrong et al. 2007: 9–33, 74–83). The transnational approach highlights the role positivist tradition limits the possibility of of processes, networks and discourse involv- engagement with politics (a good illustration ing actors that operate within and across state of this is Hathaway 2007 and Hathaway and boundaries (Slaughter 2004a). These trans- Neve 1997). From this perspective, refugee national networks and processes clearly con- law has been viewed as a self-contained tribute to international normative activity regime of international law with roots in extra- (Boyle and Chinkin 2007), and to a chang- dition law and the laws relating to national- ing conception of the world less dominated ity laws and aliens (Grahl-Madsen 1966: 79; by a vertical notion of international law and Weis 1953: 480),2 so very much “hooked on domestic law; one speaks of epistemic com- to traditional concepts of state territorial munity, transgovernmentalism, and govern- jurisdiction, i.e. the sovereign right of states ance. The participatory approach highlights to decide on admission and expulsion of all the imperative for wider participation in this those not linked by the bonds of nationality” discourse (from non-western states to the re- (Gowlland-Debbas 1996: x). fugee themselves) as being essential to build The Refugee Convention was drafted at the trust necessary for international refugee a time (1951) when the cold war took off, law to develop further. Through this discourse, hence it has been labeled as the “child of the our conception of the world is changing, Cold War” (Bertrand 1993: 498). As its and so is the law relating to refugees (Chimni name indicates, the Convention Relating 1998; Harvey 1998, 1999; Hathaway and to the Status of Refugees is about defining Neve 1997). Both approaches are attractive who is a refugee (article 1), and the rights because they offer a more prescriptive approach and benefits which persons recognized as to international refugee law quite unlike the refugees are entitled to, including the guar- descriptive approach of legal positivism. From antee against refoulement (articles 2–34). Non- the point of view of scholarship, therefore, refoulement prohibits the return of refugees to the task is not to ascertain the content of law any country where they are likely to fear for but to advocate law that promotes core com- their life or freedom (article 33(1)). It has been munity values. These emergent approaches described as “a cardinal principle of refugee therefore provide a dynamic picture of the protection” (Lauterpacht and Bethlehem evolution of refugee law in a world increas- 2003: 107). Issues of procedures (i.e. how to ingly characterized by globalization and the make a decision on refugee status) were emergence of a “common public order” never directly a matter for international law, (Goodwin-Gill 2006). Beyond these the- thus states have been left with the choice of oretical approaches, refugee law scholarship means as to implementation at the national has also become more sensitive to the moral level (Lambert 2006: 162–3). The principle and ethical dimension of refugee studies of good faith in international law none- (Gibney 2004; Juss 2004) as well as to sound theless requires that states provide fair and historical foundations (Nathwani 2000; see also efficient asylum procedures in their compli- Abuya 2007). ance with the Refugee Convention, if not in

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terms of states’ intent, at least in terms of that at present considerable divergence exists the effect of states’ action (Goodwin-Gill and in the way international refugee law is inter- McAdam 2007: 458). preted and applied. In an effort to improve In its early days, the definition of a refugee implementation of the Refugee Conven- (article 1A(2)) was limited to persons who were tion, UNHCR has suggested a more regu- escaping events that took place before 1951 larized system of reporting, periodic meetings (essentially in Europe). A Protocol Relating of states parties to review implementation to the Status of Refugees (1967) extended the issues, and harmonized regional processes for application of the Refugee Convention to interpretation and application of the principles all refugees. Both instruments have been (UNHCR 2001: 30). Meanwhile, some described as “the foundation of the interna- lawyers have called for the establishment of tional regime for the protection of refugees” an international body competent to monitor (UNHCR 2005: 1). To maximize accession, the application of the Refugee Convention “they were carefully framed to define min- by contracting states and to interpret provi- imum standards, without imposing obliga- sions of the Refugee Convention (Chimni tions going beyond those that States can 2001: 157; Hathaway 2002; Macmillan and reasonably be expected to assume” (UNHCR Olsson 2001; North 2005). Arguably, such 2001: 29). There are currently 141 states proposals may be presented as attempts to claw parties to both instruments.3 The underlying back some of the legal space occupied by states values of the Refugee Convention are clearly in this area of law (Chimni 2001: 158). stated by UNHCR as being: humanitarian, It has been argued that the dominance, in human rights and people oriented; non- particular positivist, of refugee law within political and impartial; international cooper- refugee studies during the cold war resulted ation; and universal and general character in a “depoliticized approach” which was not (UNHCR 2001: 2–3). without consequences (Chimni 1998: 354). According to article 1A(2), Refugee One such consequence was the attention given Convention: by scholars to the basic activities, structure and legal status of UNHCR in preference to its The term “refugee” shall apply to any person “knowledge and dissemination functions” who owing to a well-founded fear of being (Chimni 1998: 366). However, international persecuted for reasons of race, religion, refugee law has been significantly expanded nationality, membership of a particular through U.N. General Assembly’s resolutions social group, or political opinion, is outside the country of his nationality and is unable and EXCOM conclusions as well as custom- or, owing to such fear, is unwilling to avail ary international law and Security Council himself of the protection of that country. resolutions (Gilbert 2005: 5; Goodwin-Gill and McAdam 2007: 5–7, 20–50; Gowlland- It follows from this definition that the con- Debbas 2001; Lewis 2005). Furthermore, ceptualization of refugeehood in interna- UNHCR has, since the end of the cold war, tional law is based on the restrictive concepts become an operational agency and through of persecution and alienage (Shacknove this has come to recognize the importance 1985). This definition has been the subject of human rights in its work (Stoltenberg of intense scrutiny through refugee deter- 1991: 150).4 Thus, today protection has mination procedures and a substantial body been described as comprising “both a legal of jurisprudence has been created. But in framework [i.e. international and regional the absence of an independent international refugee law and human rights law treaties] body competent to interpret the Refugee and a solutions framework [i.e. refuge/ Convention, each contracting party is free asylum, voluntary repatriation, and assistance]” to adopt its own interpretation. This means (Goodwin-Gill 2006: 6). That said, the 346 9780415418768_4_024.qxd 26/11/2008 02:40PM Page 347

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move by UNHCR towards the protection of 1996: 246; Goodwin-Gill and McAdam internally displaced persons and its activities 2007: 2), has dramatically transformed under regarding refugee status determination in Security Council’s action. So, it has been nearly all the developing countries have raised argued that we may be witnessing an “emer- serious concerns under international human ging international community interest” or rights law (Chimni 2006; Pallis 2006). “common public order” based on the fol- Another consequence (which will be discussed lowing elements: a right of refugees and the later) was the fragmentation and isolation of displaced to return to their homes in freedom refugee law which became seen by many and dignity with a correlative states’ respon- as sui generis (Chimni 1998: 354). Finally, the sibility to protect such right; an expansion positivist approach to international refugee law of the recognition of criminal responsibility has also been relied on to explain states’ reluc- against individuals found to have committed tance to recognize a subjective right of asy- genocide, war crimes or crimes against lum. Goodwin-Gill and McAdam observe that humanity; and a right of access to refugees when article 14(1) of the Universal Declara- and civilian populations at risk (Goodwin-Gill tion of Human Rights (UDHR) was being and McAdam 2007: 6–7; see also, more drafted, states were divided between those generally, CSW 2007; Jaquemet 2001). “that regarded asylum as their sovereign pre- The formal acknowledgement that inter- rogative [e.g. the UK], and those which saw national refugee law is indeed part of inter- it as a duty of the international community national human rights law has been traced back [e.g. France]” (Goodwin-Gill and McAdam to the adoption of the Refugee Convention 2007: 358). The former view won over the as a U.N. treaty (Gowlland-Debbas 2001: 193, latter, indicating that “States had no intention 200–203; Weis 1995: 1).5 This is because the to assume even a moral obligation in the Refugee Convention became an instrument matter” (Goodwin-Gill and McAdam 2007: intended to contribute to the achievement 358). As a result, article 14(1) as adopted in of the purposes and principles of the U.N. the UDHR reads: “[E]veryone has the right (articles 1(3) and 55, U.N. Charter). Cruci- to seek and to enjoy [as opposed to be granted] ally, this commitment to human rights, as . . . asylum from persecution.” enunciated in the U.N. Charter but also in Today, Goodwin-Gill and McAdam UDHR, is explicitly stated in the Preamble maintain that “the individual still has no of the Refugee Convention. Yet, a number right to be granted asylum. The right itself of factors (such as, the lack of a subjective is in the form of a discretionary power” (2007: right of asylum, traditional concepts of sover- 414). In practice, many states have used eignty and the cold war) created a narrow con- the refugee deﬁnition in article 1A(2) of the ception of refugee law, one that became Refugee Convention as the basis for grant- “segregated from the development of inter- ing asylum but asylum “as an obligation on national human rights law” (Gowlland- States to accord lasting solutions, with or Debbas 1996: x; see also McNamara 1998: without a correlative right of the individual, 175). Flauss speaks of ambiguous and contra- continues to be resisted” (Goodwin-Gill and dictory relationships between international McAdam 2007: 415). That said, states have refugee law and international human rights law certain legal obligations under refugee law, (Flauss 2001: 94). He gives as an example, the human rights law, and humanitarian law, in fact that it took 30 years for the International particular they have a duty of non-refoulement. Institute of Human Rights (Strasbourg) to Furthermore, international law, which until introduce a course on refugee law as part of 1991 supported the doctrine of non- its annual teaching program (Flauss 2001: 94). intervention (article 2(7) U.N. Charter) in Also, one has to wait for the 1990s to see countries of origin producing refugees (Baer any signiﬁcant references made to human 347 9780415418768_4_024.qxd 26/11/2008 02:40PM Page 348

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rights in UNHCR EXCOM Conclusions tion provided by states (and by UNHCR) to (UNHCR 2005) and for law scholarship refugees in countries of origin (e.g. internal to articulate fully the relationship between protection) and in countries of refuge (in terms refugee law and human rights law (Anker of the rights granted to asylum seekers as well 2002; Harvey 1998, 1999; Hathaway 1991, as the rights granted upon recognition of 2007; Hathaway and Neve 1997; Helton refugee status and complementary protection 2002: 124). Gowlland-Debbas speaks of a status) (Goodwin-Gill 2004; Hathaway 2005; veritable “rediscovery” that refugee law is Lambert 1999, 2005). Finally, it is being human rights law (Gowlland-Debbas 1996: used to tackle issues of states’ responsibilities xiii). There is now clear understanding that (Gil-Bazo 2006: 600) as well as UNHCR’s international human rights law serves to accountability (Pallis 2006). Viewed from reinforce refugee protection and that it gives this enlarged perspective, the debate about meaning to the “right to enjoy asylum” in the linkage between refugee law and human international law (Edwards 2005; Gil-Bazo rights law has revealed a number of issues that 2006: 600). Should an inconsistency occur had remained largely unaddressed in refugee “between the two bodies of law, the higher law, such as the right to leave, to return, and standard must prevail” (Edwards 2005: 330). to remain, the obligations of the receiving state Predictably, this “rediscovery” has not to meet certain standards of treatments, the gone unchallenged. First, it has been argued obligations of UNHCR to act in accordance that human rights law is not without its with international human rights law in its own problems and that some of these prob- refugee status determination activities, and lems will simply transfer to refugee law, such the human rights situation in the country of as the domestic/international jurisdictional origin (e.g. state responsibility, root causes). debate, the sovereignty/humanitarian inter- The human rights approach is by no mean vention debate, the lack of self-interest as a incompatible with a positivist tradition; it motivating force, the proliferation of human may indeed sit quite squarely with legal posit- rights coupled with the lack of a hierarchy ivism (and its unilateralism and state-centered of human rights, and the problem of institu- approach). Hathaway, for instance, argues that tional coordination and overlapping mandate “a positivist understanding of international (Gowlland-Debbas 1996: xiii; Kennedy law is an important means to advance both 2005; Nathwani 2000: 364–7).6 Second, it refugee rights, and the more general inter- has been observed that the juridical link national human rights project” (Hathaway between these ﬁelds is mostly in the form of 2005: 24). This approach may nonetheless soft law (Gowlland-Debbas 1996: xiii). One be contrasted with a recent trend towards notable exception is the adoption of the more dialog and wider participation. This EU Qualiﬁcation Directive (that is a bind- trend is not incompatible with the human ing legal instrument) which combines both rights approach, but it is in the transnational refugee protection status and subsidiary pro- approach and in the participatory approach that tection status (Lambert 2006). the full depth and breadth of such dialog is These criticisms notwithstanding, the best captured. human rights approach is currently the dominant one in refugee law. This approach explains that refugee law operates on the The transnational approach and premise that a human rights violation has taken the participatory approach place or is going to take place imminently (Nathwani 2000). It also takes human rights The previous section discussed international law as a benchmark for the quality of protec- refugee law based on the assumptions that

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“International law has traditionally been just Transnational networks and that – international” (Slaughter and Burke- processes in refugee law White 2006: 327; see also Lauterpacht 1931: 31). However, globalization and new trans- More and more networks are working national threats have “changed the nature of together to tackle cross-borders issues, such governance and the necessary purposes of as refugee flows, immigration, crime, and ter- international law” (Slaughter and Burke- rorism. These networks have different shapes White 2006: 328). And refugee law has not and sizes, and different aims. Single-issue been immune from these changes. Lubbers, networks focusing on one particular issue are for instance, observed that “In a globaliz- constituted side by side with broader, more ing world and a rapidly changing political general refugee law networks. Government environment, the Convention faces many networks, constituted of judges and policy- challenges. These include new forms of makers, and networks of intergovernmental persecution and conflict, complex mixed organizations (IGOs) are established alongside migration movements, the reluctance of networks of academics and activists. Chimni many states to accept refugees, and restrictive argues that this increase in networks and act- interpretation of the Convention” (Lubbers ivities is creating a “global state” (Chimni 2003: xv). International refugee law there- 2004). An alternative perspective offered by fore must contend with an increase in trans- Slaughter is that the concept of states is not national activities and with calls for wider disappearing, so much as it is “disaggregating” participation in these activities. This is not in an age of global governance with states now surprising since “the system of international confronted to a new range of actors that they protection of refugees remains a unique themselves have created (Slaughter 2004b). combination, bringing together states, inter- With the exception of the EU, all these net- national organizations, non-governmental works and processes have contributed to organizations and the refugees themselves in the development of refugee law through soft the pursuit of common ends” (Goodwin-Gill law (and norms). This section looks at three 1999: 221). kinds of transnational network: judicial, This section discusses a few key transna- based around an IGO-UNHCR, and based tional activities undertaken in this area of around the EU. international law. It also discusses calls for The International Association of Refugee widening participation in the process of Law Judges (IARLJ) was established at refugee law making. Both these trends are Warsaw in 1997 to facilitate communication reflected in the transnational approach and and dialog between refugee law judges the participatory approach, respectively. As around the world in an attempt to develop highlighted by scholars, these approaches “consistent and coherent refugee jurisprud- are non-exclusive. Anker, Fitzpatrick, and ence” (Storey 2003: 422).7 This need was Shacknove, for instance, talk about “plural- felt particularly strongly in this area of law ism in refugee law” (i.e. the existence of an because of the lack of a supranational court increasing number of networks) and the need competent to develop authoritative legal for refugee voices (in particular women standards based on the Refugee Convention. refugees) to be taken into account in re- Hathaway has described the IARLJ as “One fugee law reforms (Anker et al. 1998). And of the most exciting recent developments in Chimni talks about increasing and widen- refugee law” because it provides clear evidence ing dialog between states and others actors, of the existence of an “ongoing transnational including refugees, in an “emerging global judicial conversation” (Hathaway 2003: 418; state” (Chimni 2001, 2004). see also Slaughter 1994: 121, 127; Slaughter

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2003). He further notes that refugee law has world and vice versa (Slaughter 2004a: recently evolved mostly under the influence 65–103). This is something that could be of judges and that refugee law has “become developed further in refugee law as it would fundamentally judicialized” (Hathaway go some way in addressing some of the 2003: 418). During the last 10 years, several criticism raised regarding these networks. decisions of superior courts in states parties Chimni, for instance, argues that a growing to the Refugee Convention have indeed network of international institutions – eco- contributed to the advancement of interna- nomic, social, and political – is creating a global tional refugee law.8 Storey even called for the state of an imperial character (Chimni 2004) application of “a principle of convergence, i.e. and that this “emerging global state” notably that tribunals and courts in different countries lacks the elements necessary for a strong dia- should seek as far as possible to apply the log between south and north (Chimni 2001). same basic principles” (Storey 2003: 423). The There are also a number of networks role of high courts as “agents of normative based around UNHCR. One such net- change” has been recognized in other areas work is the Global Consultations Process, of law, e.g. aliens’ rights (Guiraudon 2000: launched in October 2000 with the purpose 1107). In the area of refugee law, this role is of provoking “both reflection and action to particularly strong in light of the coordinat- revitalize the international refugee protection ing work of IARLJ with many of these deci- regime” (UNHCR 2002: 1). As a process, sions (mostly from western states) finding a particular attention was given to dialog and place on the IARLJ database. This role is cooperation, and to broad-based participation. nonetheless limited because “of necessity So, the participation of refugees as key stake- those cases are dependent on their own facts holders in the system and of NGOs was pro- and have no binding qualities outside their own moted through an international dialog with jurisdiction” (Gilbert 2005: 3).9 However, the 50 refugee women in Geneva and a debate EU harmonization process of refugee law is bringing together over 500 refugees in the reshaping our understanding of “persuasive French National Assembly as well as a forum authority” and cross-referencing between of refugees in Europe (Rouen, France) common and civil law jurisdictions in (UNHCR 2001: 31). This process lasted 18 refugee law is on the increase. So, it may months and led to the universal reaffirmation indeed be the case that refugee law judges are of the Refugee Convention as the basis of increasingly becoming “independent actors refugee protection. A first outcome of the in the international arena” (Slaughter 2004a: Global Consultations Process was the adop- 68; see also Slaughter 2003). tion of the Agenda for Protection, i.e. a It has been argued that networks of program of action drafted by UNHCR national governments officials are useful in (approved by EXCOM in 2002) to improve building trust and establishing good relation- the protection of refugees and asylum seekers ships among participants. In particular, look- by highlighting existing gaps in the refugee ing at the judiciary, it has been argued that protection regime. Since then UNHCR has judges not only exchange information about drafted several guidelines to complement its different approaches to common legal issues, now quite outdated Handbook on Proced- they also “offer technical assistance and pro- ures and Criteria for Determining Refugee fessional socialization to members [. . .] from Status. A second outcome of the Global less developed nations” (Raustiala 2002; Consultations Process was the publication of Slaughter 2000). Such learning experience has the debates (i.e. papers and conclusions) that been identified as a two-way street when cross- took place during the Global Consultations referencing between high courts happens expert roundtable consultations (Feller from the developed world to the developing et al. 2003). Lewis has described the Global 350 9780415418768_4_024.qxd 26/11/2008 02:40PM Page 351

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Consultations Process and the Programme Convention Plus for its norm-setting role. In of Action (in the Agenda for Protection) as particular, they see Convention Plus as rep- “novel methods for contributing to the resenting “a significant new departure for development of international refugee law” UNHCR” within its approach to facilitating (Lewis 2005: 90). And Chimni sees norm creation and as contributing “to the UNHCR Consultation Process as one step development of a range of ideas that speak to in the direction of UNHCR’s new advocate a broader debate on the role of norms within role (between south and north, and between both the refugee regime and global govern- states and other participants, including ance broadly” (Betts and Durieux 2007: refugees) (Chimni 2001). He also calls for such 515). Thus, they argue that “A mutually shared initiative to be more sustained if one is to see understanding of ‘the rules of the game’ any change in UNHCR’s existing deference [i.e. asylum, assistance and burden-sharing] towards northern states (Chimni 1998: may therefore offer a basis for beginning to 365–71).10 The Convention Plus Process is yet change behaviour” (Betts and Durieux 2007: another step in that direction. 515). More generally, Betts and Durieux Convention Plus started as “an ad hoc highlight the key role that UNHCR can response to the Agenda for Protection” (Betts play in facilitating “the creation and devel- and Durieux 2007), the essence of which opment of new norms” (Betts and Durieux (i.e. north–south responsibility sharing) had 2007: 516). Substantively, they identify two already been floated in North American legal complementary models of norm creation in scholarship (Betts 2005).11 Its specific aims this context: the “institutional bargaining were twofold: “to increase the level and model,” which is top down and which is most predictability of burden-sharing” and “to appropriate when trying to develop univer- channel this new, abstract commitment into sal norms, and the “good practice model” finding durable solutions to specific pro- which is bottom up and which provides tracted refugee situations.” Its overall purpose examples of good practice to be followed in was to discuss “creating a normative frame- future. work for global burden-sharing” (Betts and Finally, the European Union can be de- Durieux 2007: 516; see also Betts 2006: scribed as a set of rules (i.e. treaties and 655). As an interstate process, Convention Plus secondary legislation), networks (e.g. policy involved creating structures to facilitate dia- networks on how to implement the asylum log between countries in the south (i.e. host EC Directives to achieve harmonization) states) and countries in the north (i.e. donor and processes that are substantially transnational states). It also encouraged coalition and because they go into states (Burley and convergence between particular states (i.e. Mattli 1993: 43)12 (e.g. the formation of EC “plurilateralism”). As a multilateral negotia- asylum measures, their adoption as EC law, tion process, Convention Plus involved and their implementation in domestic law). states, NGOs and UNHCR in an open and Europe is now the only region in the world structured dialog. Convention Plus was sup- to legislate (through legally binding instru- posed to lead to the development of special ments) on substantive (and procedural) agreements (in either binding or soft law matters of interpretation of the Refugee form). Sadly, by the end of 2005, all that was Convention. While the “power of law” achieved was the Multilateral Framework of clearly plays a role in these processes, the inter- Understanding on Resettlement and two action of “Individual actors – judges, joint statements relating to targeting devel- lawyers, litigants – [. . .] with specific iden- opment assistance and irregular secondary tities, motives, and objectives” has been movements (Betts and Durieux 2007: 514). crucial in the further developments of the Nonetheless, Betts and Durieux have praised EU (Burley and Mattli 1993: 53). In the area 351 9780415418768_4_024.qxd 26/11/2008 02:40PM Page 352

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of refugee law, however, individual actors have revealed a transnational legal process so far mostly been states. The adoption of whereby up until 2004-05, “domestic legis- four key directives and two regulations on lation [was] sending norms to, rather than matters of asylum concluded the first phase receiving them from, the asylum acquis” towards the establishment of a Common (2004: 366). Following the adoption of the European Asylum System (CEAS).13 necessary directives and regulations neces- The formulation of these legislative acts sary to establish a CEAS (as well as the move was a result of political negotiations between to the qualified majority voting and the key EU member states. Indeed, NGOs, aca- co-decision procedure), this upward state- demics and some key non-EU states (e.g. centrist transnational legal process is only the U.S. and Canada) were only invited by the now starting to feed back downward from European Commission to participate in the Brussels to the member states. early drafting stage of this process. Chimni The creation of a CEAS and its full estab- thus describes the harmonization process in lishment by 2010 means that implementa- Europe as “the positivist methodology taken tion of refugee law is no longer only an area to its logical conclusion with Eurocrats fram- of national concern, it has also become a ing the law in secrecy, away from democratic European issue. So, the Commission has pressures” (Chimni 1998: 355). Byrne, Noll, recently embarked into an evaluation of the and Vedsted-Hansen offer a more compre- first phase, i.e. a monitoring program of activ- hensive picture of this process towards har- ities on the implementation of all the instru- monization by re-orienting the debate onto ments adopted so far in the field of asylum the lateral process of refugee law formation, pursuant to articles 211 and 226 EC Treaty. transformation, and reform, i.e. on the This evaluation should help facilitate a con- activities between domestic, sub-regional vergence in interpretation between member and regional forces (Byrne et al. 2004). For states and arrive at levels of harmoniza- instance, having located the formative stage tion beyond what is stipulated in the direc- of the “safe third country” notion into tives. The European Commission has also Danish legislation, they show how 10 years initiated a series of cooperation measures later, this notion came to be implemented of a practical nature (or networks), such in practically every western European state, as “contact committees,”14 Eurasil15 and the and how, again 10 years later, it became EU General Directors’ Immigration Services law. Crucially they note that this process of Conference (GDISC).16 Some of these formation (in Denmark followed by other implementation-related activities have been western European states), transformation (in coordinated by the Odysseus Network.17 mostly soft law) and reform (in EU law) fol- Beyond this political role, the European lowed its own dynamic in spite of opposition Court of Justice (ECJ) will ensure that na- from the European Court of Human Rights, tional judicial interpretation of these instru- national courts and UNHCR. They thus con- ments is indeed correct. Crucially, its rulings clude that “In reality, norms are transformed on interpretation will contribute to uniform in a constant interplay between domestic, interpretations of EU asylum law, as well as sub-regional and regional forces, rather than more largely to links, desperately needed in replicated from the acquis into domestic this new area of European law, between the legislation” (Byrne et al. 2004: 357). So, “bil- ECJ and subnational actors.18 The recognition ateralism accounts for a greater degree of of certain provisions of European Directives normative development and proliferation as having direct effect should further than multilateralism at EU level” (Byrne strengthen the legal protection of persons in et al. 2004: 358). Byrne et al. have thereby need of protection in the national courts.

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More dialog, more participants get us only so far in explaining how refugee law is created and how it develops. There Most scholars sympathize with the idea that is another layer of explanation that looks refugee law should develop through dialog into transnational activities and their effect on between a wide range of participants world- how the law is shaped, interpreted, applied wide (Pallis 2006). Chimni notably argues that and developed. Whereas the dominant dialog is crucial to arrive at “a consensus on human rights approach focuses mainly on the the changes to be introduced in the post-war sources and contents of rules (and their regime” (Chimni 1998: 369). This dialog must enforcement), both the transnational and not be limited to between scholars, lawyers, the participatory approaches (as emerging states, UNHCR, NGOs from the north but approaches) are useful in capturing the com- also include the south, and it should be based plexities of the process of law formation and on the principles of deliberative democracy law development by looking more specific- (i.e. on the basis of good argument as opposed ally at networks and other participants in the to one’s own interest) (Chimni 2001: 152). process of law making. The challenge of con- However, looking at the EU, Chimni denies temporary international refugee law is to that such dialog already exists. He relies on recognize more explicitly the role of such net- the fact that the EU is developing its com- works and the soft law and norms that they mon asylum system without entering into often produce. dialog with other regions, in spite of the influence that this regime will have on other [Author note: I would like to thank regions (e.g. the practices of non-entrée that Professor B. S. Chimni and Professor James undermine the principle of burden sharing). C. Hathaway for their valuable comments on The more specific argument has also been an earlier draft of this chapter.] made that refugee voices should be heard.19 For instance, it has been argued that the participation of refugees should be enhanced in Notes the context of UNHCR’s refugee status determination activities and accountability 1 Other disciplines such as anthropology, politics, sociology, economics, and international for such activities (Pallis 2006), when discussing relations are playing an increasing role. legal solutions (such as repatriation) to the 2 Paul Weis, for instance, argues that the lack of refugee problem (Aleinikoff 1992: 134–8), or diplomatic protection is an essential element when looking at the impact of refugee law for the status of refugee. Whereas for Atle and policy (Polzer 2007). Grahl-Madsen, it is the rupture of the ties between a national and the authorities of his The participatory approach therefore sug- own country (i.e. de facto statelessness) that gests a culturally sensitive approach to refugee constitutes an essential element of being a law (Wilde 2001: 148). Juss even called for refugee. refugee rights to be located within a broader 3 http://www.unhcr.org/protect/PROTEC- system of immigration rights that would be TION/3b73b0d63.pdf. In this chapter, all references to the “Refugee Convention” are more humane and more culture sensitive meant to include the 1967 Protocol. ( Juss 1998). 4 This publication contains excerpts from the Statement by Stoltenberg to the 46th session of the U.N. Commission on Human Rights, Conclusion February 22, 1990. 5 Weis notes that the initial impetus for a Convention relating to the status of refugees States and their formal agreements (e.g. the originated in an initiative from the U.N. Refugee Convention and EU asylum laws) Human Rights Commission.

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6 Nathwani instead suggests a “necessity of information, of common interpretation, approach” but admits nonetheless that both the and of common usage. This network is now human rights approach and the necessity developing further to coordinate more activ- approach share a common space. ities, such as common guidelines on the use of 7 One other objective of the association is countries of origin information and fact- training to improve “judicial decision-making findings missions, and the development of a on refugee issues.” European Asylum Curriculum (as a joint 8 E.g. Islam v Secretary of State for the Home Depart- practical training and education of asylum ment, R vs. Immigration Appeal Tribunal and service personnel): www.ulb.ac.be/assoc/ another, ex parte Shah, House of Lords, March odysseus/EAC.doc. 25, 1999, and R vs. Special Adjudicator, ex parte 16 The General Directors’ Immigration Services Hoxha, House of Lords, March 10, 2005. Conference was established in 2004 as a net- 9 For this reason, Gilbert considers UNHCR work of the General Directors of European guidance (although equally non-binding) as Immigration Services to promote operational offering “more general and far reaching ana- cooperation between the immigration ser- lysis that, by definition, ought not to be as vices responsible for the implementation of concerned with state interests.” migration and asylum issues through the 10 Chimni gives two examples: UNHCR’s reli- exchange of experience and best practice and ance on “the language of security to recom- by building up networks of experts. In par- mend solutions to the global refugee problem” ticular, it organizes activities funded by the and “the relationship of UNHCR to human European Refugee Fund and the European rights.” Both examples illustrate UNHCR’s Commission, such as the European Asylum practice in borrowing concepts developed by Curriculum. northern states and scholars. 17 The Odysseus Network was created in 1998 11 Betts refers in particular to Hathaway’s York- (at the initiative of Philippe de Bruycker – based Refugee Law Reformulation Project of Université Libre de Bruxelles – with the fin- the 1990s. ancial support of the Odysseus Programme of 12 Or in the words of Burley and Mattli, the the European Commission) to carry out legal EC is a process of “gradual penetration of research and offer expert opinions, and to EC law into the domestic law of its member exchange and diffuse information in the field states.” of immigration and asylum law in Europe 13 http://ec.europa.eu/justice_home/doc_centre/ http://www.ulb.ac.be/assoc/odysseus/odnetuk. intro/docs/acquis_1006_en.pdf. The Euro- html. As an academic network for legal stud- pean Commission’s Green Paper on the ies, it brings together experts from the 27 mem- Future Common European Asylum System ber states of the EU and collaborates closely ( June 6, 2007) starts the second phase (due to with judges, governments’ officials and EU insti- end in 2010). The Eurocrats’ drive is clearly tutions’ officials. It is currently involved in estab- for total harmonization of procedures, protec- lishing the European Asylum Curriculum: tion status, and asylum decisions, and for all http://www.ulb.ac.be/assoc/odysseus/index2. states’ discretion to be removed. html. It is also involved in the monitoring 14 “Contact committees” are informal networks of the implementation of 10 Directives in the of experts meetings between the EU member field of immigration and asylum law in the 27 states, with UNHCR as an observer. Meet- member states: http://www.ulb.ac.be/assoc/ ings take place to discuss practical issues relat- odysseus/CallTenDirectives.html. ing to the implementation of the Directives on 18 Note that the article 234 procedure in the area asylum and immigration and to reach a com- of asylum/refugee law contains some inherent mon interpretation on the basis of best prac- limitations. tice. The European Commission then drafts a 19 E.g. the Mexico Declaration to Strengthen non-binding report that is circulated only the International Protection of Refugees in between the Member States (and UNHCR). Latin America states “the importance of fully 15 Eurasil was created in 2002 as an EU network involving uprooted populations in the design of asylum practitioners (asylum experts, mem- and implementation of assistance and protec- ber states representatives, and UNHCR) from tion programs, recognizing and valuing their the member states administration. It is the main human potential.” Mexico City, November 16, network for discussing countries of origin 2004, reprinted in International Journal of information. The purpose is one of exchange Refugee Law, 17(4), 2005: 802–807.

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25 Sustainable development in international law

Marie-Claire Cordonier Segger

Of the 192 states that exist today, a vast major- protection – at the local, national, regional ity are considered “developing countries”. The and global levels. definition of development, however, remains ( Johannesburg Declaration, unclear both in fact and in law. Many economic World Summit for Sustainable development decisions have significant environmental Development 2002) and social impacts, and the notion of “sustainable development” has gained currency in international legal debates over recent decades. However, when Introduction: making states commit “to promote sustainable development” development “sustainable”? in a treaty, or agree to conduct their relations in accordance with a “principle of sustainable devel- Many economic development decisions have opment”, the implications of this commitment are environmental and social impacts, and the not always clear. In this chapter, the origins of sus- notion of “sustainable development” has tainable development as a concept are reviewed. The gained great currency in international status of sustainable development in international debates. Sustainable development has been law is then discussed. While it may not yet be gen- the topic of a world summit and is now the erally accepted as a customary principle, it is clearly subject matter of many international treaties. agreed as a policy objective in many treaties, sup- Sustainable development issues have also ported by other principles. And further, sustainable been argued before many prominent inter- development, as an objective of international law, national tribunals. Through the 1992 United can and does serve to reconcile interstitial tensions Nations Conference on Environment and between economic growth, social development and Development (UNCED), the 1997 United environmental protection in the interest of a com- Nations General Assembly Special Session mon future. on Sustainable Development and the 2002 World Summit on Sustainable Development, We assume a collective responsibility to and in a recent series of significant interna- advance and strengthen the interdependent tional, regional and bilateral environmental, and mutually reinforcing pillars of sustain- economic and development agreements, able development – economic development, states have made sweeping commitments to social development and environmental sustainable development. However, what 355 9780415418768_4_025.qxd 26/11/2008 02:41PM Page 356

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does this commitment mean? In particular, on the environment or long-term survival, what does it mean in international law? unless viable alternatives are offered. Sustainable development refers to state efforts to achieve progress (development), in a way that can be maintained over the long Timeline of global sustainable term (“sustainable”). The Preamble to the 1986 development debates Declaration on the Right to Development, defines development as: In 1972, the United Nations (1972a) called an international Conference on the Human [A] comprehensive, economic, social and Environment (UNCHE), which resulted cultural process which aims at the constant in the Stockholm Declaration on the Human improvement and well-being of the entire Environment, the creation of the United population and of all individuals on the Nations Environment Programme, and basis of their active, free and meaningful increased impetus to agree on certain multi- participation in development and in the lateral environmental agreements (MEAs) fair distribution of the benefits resulting such as the 1973 Convention on International therefrom. Trade in Endangered Species (CITES).1 The (United Nations 1986a) Stockholm Declaration recognizes, in Principle 14, the need to reconcile conflicts Development can be described as an iterative “between the needs of development and process which seeks to improve human con- the need to protect and improve the envir- ditions and find viable livelihoods for peoples onment.” However, key elements of the in developing countries. In UNGA debates, Declaration also underlined deep divides many states have argued for a “right to between developed and developing countries development” (United Nations 1974; see on a global environmental protection agenda also United Nations 1986a). (United Nations 1972a: 11, 23). Concerns about the sustainability of devel- In 1983, responding to increasingly heated opment patterns have gained currency and are debates between developed and develop- influencing the positions of many countries. ing countries, the United Nations General Scientists are worried that if populations Assembly established the World Commis- continue to increase and all human beings sion on the Environment and Development adopt the extraction, production, consump- (WCED) mandating it “[t]o propose long- tion and pollution patterns common in most term environmental strategies for achiev- developed countries, humanity will quickly ing sustainable development to the year 2000 exceed the carrying capacity of the world’s and beyond” (United Nations 1983). The resources. In short, there is a concern that cur- WCED delivered its Report to the UNGA, rent models of economic development are Our Common Future in 1987. The most unsustainable. They cannot be maintained generally accepted definition of sustainable and their benefits will not last over time. development is found in this “Brundtland However, as states hold sovereignty over Report” where it is defined as “development their own natural resources, and most devel- that meets the needs of the present without oping countries are understandably unwilling compromising the ability of future generations to accept internationally imposed limits on the to meet their own needs” (WCED 1987: exploitation of these resources. As developed 43). In Resolution 42/187, “Report of the countries achieved present standards of living World Commission on Environment and through exploitation of resources, it appears Development”, the UN member states noted unworkable to prevent others from adopt- the need for “a reorientation of national and ing the same patterns, no matter the impact international policies towards sustainable 356 9780415418768_4_025.qxd 26/11/2008 02:41PM Page 357

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development patterns” and emphasized global understanding of the concept of sus- “the need for a new approach to economic tainable development. However, most of growth, as an essential prerequisite for eradi- the details on sustainable development goals cation of poverty and for enhancing the and standards, remained to be worked out resource base on which present and future through, and the new obligations and insti- generations depend”. Though the conserva- tutions recommended by, the Conference. In tion adgenda remained key, this moved particular, the global treaties signed at the international discourse beyond simply pro- UNCED became one of the principal areas tection of the environment. where new standards, rules and regimes In 1992, the UN convened a global con- helped to clarify the content of a commitment ference in Rio de Janeiro – the United to sustainable development. Follow-up Nations Conference on Environment and mechanisms were set in place, including a Development (UNCED, or the Rio “Earth Global Environment Facility (GEF), hosted Summit”) (Kiss and Shelton 1994: 67). by the World Bank, the UNEP and the Specific outcomes included the 1992 Rio UNDP (as implementing agencies) and a Declaration, a short consensus declaration United Nations Commission for Sustainable agreed by the heads of state assembled in Rio; Development (UNCSD) on November the 1992 Agenda 21, which is annexed to the 25, 1992. Meeting on a yearly basis, the Declaration and contains an extensive global UNCSD reviewed implementation of the action plan on specific environment and Agenda 21 at national, regional and interna- development issues; and three international tional levels. After Rio, the UNCSD man- treaties signed by a record number of coun- date was fairly broad (see United Nations tries: the 1992 United Nations Framework 1993a: [3]–[5]). In 1997, a special session of Convention on Climate Change, the 1992 United the United Nations General Assembly, the Nations Convention on Biological Diversity, and “Earth Summit+5”, was held in New York the 1994 United Nations Convention to Combat to review progress toward the objectives set Desertification (United Nations 1992c, 1992d, in Rio. The resulting Declaration, the Pro- 1994). The 1992 Rio Declaration, a short gramme of Further Action to Implement Agenda document of 27 principles, affirms the focus 21, acknowledged that progress had been on human development that is central to the insufficient, called on governments, inter- concept of sustainable development, and lays national organizations and major groups to out a series of “principles” which can help to renew their commitment to sustainable achieve sustainable development (United development and emphasized that economic Nations 1992a, 1992b). Agenda 21, which was development, social development and en- negotiated by the States engaged in the vironmental protection are three inter- UNCED process, complements the Rio dependent and mutually reinforcing “pillars” Declaration by providing an 800 page “blue- of sustainable development (United Nations print” for sustainable development. The 1997b). purpose of this “blueprint” was to halt and In this context, in 2002, the World Sum- reverse the effects of environmental degrada- mit on Sustainable Development brought tion and to promote sustainable development together 12,625 accredited in Johannesburg, in all countries (Robinson 1993). Agenda 21 South Africa with over 45,000 attending also noted, as means of implementation of related events. The United Nations sought to sustainable development, the need for inter- reinvigorate global commitment to sustain- national action to codify and develop “inter- able development.2 States focused on how national law on sustainable development” (see, best to implement sustainable development in in particular, United Nations 1992a: [39.1]– a context of globalization and renewed com- [39.10]). The Earth Summit contributed to mitments to overseas development assistance. 357 9780415418768_4_025.qxd 26/11/2008 02:41PM Page 358

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Outcomes included a 2002 Johannesburg policy-making process related to sustainable Declaration, and a Johannesburg Plan of Imple- development, engaging nearly all 192 states mentation. The Johannesburg Declaration of the world. The United Nations sought a simply provides a political commitment to bridge between developed and developing sustainable development from Heads of countries in order to resolve serious problems State.3 The 2002 Johannesburg Plan of Imple- of environmental degradation and lack of social mentation ( JPOI) is designed as a framework and economic development. The concept for action. It includes 11 chapters covering of sustainable development provided that poverty eradication; consumption and pro- bridge. However, states have not agreed on duction; the natural resource base; health; one definition for sustainable development. small island developing states (SIDS); Africa; Rather, they have focused on developing other regional initiatives; means of imple- greater global consensus on how to achieve mentation; and the institutional framework it, signing and ratifying international treaties (governance). The JPOI contains over 30 where necessary. specific time-bound targets for action (including reaffirmations of target agreed in the Millennium Development Goals and other Sustainable development instruments).4 Specific attention was focused in international law: on certain important priorities identified by re-conceptualizing the debate the UN Secretary General, in the areas of water and sanitation, energy, health, agriculture The most accepted short description of and biodiversity (the so-called “WEHAB” sustainable development continues to be the issues). one adopted by the UN General Assembly: Unlike in the 1992 Rio “Earth Summit”, “meeting the needs of the present without the Johannesburg Summit process did not compromising the ability of future generations produce new treaties. Instead, in the JPOI, to meet their own needs”. This is not par- states specifically highlighted over 60 existing ticularly helpful to determine the exact economic, environmental and social interna- parameters of an international treaty com- tional agreements that play a role achieving mitment to “sustainable development”, or the sustainable development, and mentioned precise normative content of sustainable more than 200 others. It reinforced interna- development in international law. tional recognition of certain key principles of One international accord does provide international law on sustainable develop- an agreed definition of sustainable development, including the principles of common but ment. In the 2002 Convention for Cooperation differentiated responsibility, precaution, and in the Protection and Sustainable Development of openness, transparency and public participa- the Marine and Coastal Environment of the tion and profiled international instruments and Northeast Pacific at Article 3(1)(a), states agree techniques to put these principles into prac- that: tice (Cordonier Segger and Khalfan: 2004). At the insistence of the South African and other governments, the Summit also shifted [S]ustainable development means the pro- the focus of sustainable development towards cess of progressive change in the quality of life of human beings, which places them social issues, giving full priority to strategies as the centre and primary subjects of devel- to address poverty eradication, sanitation and opment, by means of economic growth health, not just environmental protection with social equity and transformation of and development. production methods and consumption In sum, therefore, over the past 30 years, patterns, sustained by the ecological bal- there has been an extensive “soft law” ance and life support systems of the region. 358 9780415418768_4_025.qxd 26/11/2008 02:41PM Page 359

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This process implies respect for regional, few persistently objecting states (Hunter et al. national and local ethnic and cultural 2001; Kiss and Shelton 1994; Sands 2003). diversity, and full public participation, Second, others note that international law on peaceful coexistence in harmony with sustainable development has mainly emerged nature, without prejudice to and ensuring 5 in international treaties and accords. It is a com- the quality of life of future generations. mon purpose among many states when they sign international environmental, economic This definition emphasizes certain aspects of and other treaties. In some cases, such as recent the concept that have been recognized by states treaties related to energy, desertification or in the global policy-making process. First, it food and agriculture, it might even be seen focuses on sustainable development as human as a primary objective of the international centred, in that it involves finding new ways agreements themselves (Cordonier Segger to improve quality of life for people. Second, and Khalfan 2004; Agenda 21 1992). it focuses on the need to reconcile and inte- Viewed in this light, sustainable development grate environmental protection and social is a purpose of treaty law rather than a single development with economic development. customary principle in itself. Third, even Third, it notes that development that is if sustainable development were mainly an sustainable should be able to last over the objective rather than principle of international long term, although the environmental limits law, its invocation by states may still engage of ecosystems and resources are dynamic and a certain interstitial normativity,6 helping to the relevant time horizon depends on the push or pull other principles into play, and resource and ecosystem in question. How- encouraging states to use certain legal or ever, this is scarcely a universally recognized institutional mechanisms to secure progress or agreed definition, neither are the norma- toward sustainable development as a policy tive consequences straightforward. objective (Lowe 1999: 27). Each of these In global summits and other processes, there characterizations has different normative are repeated calls for better law and policy consequences. to realize complementary objectives of environmental protection and socioeconomic development. For these calls to take best effect, Sustainable development as a it is important to understand the legal status customary principle of international of a commitment to sustainable development. law “Binding” principles can be found in treaties, but they can also be discerned as prin- The legal status of sustainable ciples of international customary law. Such development principles are important as they can establish obligations for all states except those which How to characterize a commitment to sus- have persistently objected to a practice and tainable development in international law? At its legal consequences. Customary international least three views currently provide different law rules can be derived from the consistent pictures of the status of sustainable develop- conduct of states acting in the belief that ment in international law each with different international law required them to so act normative consequences. (Thirlway: 2006: 121–27). Jurists, to prove First, some states and non-governmental an international customary principle, must organizations have argued that sustainable show general state practice (by demonstrat- development is a new customary principle of ing the widespread repetition by states of sim- international law, one that is in the process ilar international acts over time) and opinio of being established as binding on all but a juris (by demonstrating that states acted in this 359 9780415418768_4_025.qxd 26/11/2008 02:41PM Page 360

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way because they believe themselves to be may be prescriptive or permissive elements. obligated). Such acts must be taken by a International tribunals have considered this significant number of states and not be issue in several ways. H.E. Judge C. G. rejected by too many others with an interest Weeramantry, as Vice-President of the in the matter (Akehurst 1974–5; D’Amato International Court of Justice, argues that 1971; Mendelson 1995). sustainable development is a principle of international law in his Separate Opinion in Gab íkovo vs. Nagymaros. In particular, he stated Fundamentally norm-creating D that it is “more than a mere concept, but as character a principle with normative value which is First, to prove a norm of customary law, there crucial to the determination of this case”.9 is a need to show that the state practice and Indeed, as he further explains, after review- opinio juris has been extensive and virtually ing many international commitments: uniform in the sense of the provision invoked. This element relates to the requirement that The concept of sustainable development is thus a principle accepted not merely by a principle have the “fundamentally norm- the developing countries, but one which rests creating character such as could be regarded on a basis of worldwide acceptance . . . 7 as forming the basis of a general rule.” Here, The principle of sustainable development as observed by Vaughan Lowe, the concept is thus a part of modern international law of sustainable development in itself might by reason not only of its inescapable log- encounter certain difficulties in being recog- ical necessity, but also by reason of its nized as a principle of customary law. In 1995, wide and general acceptance by the global Gunter Handl (1995: 96) stated baldly that: community. “[N]ormative uncertainty, coupled with the Should this view be accepted, the question absence of justiciable standards for review, remains as to what such a principle per- strongly suggest that there is as yet no inter- mits and requires, in effect. The 2005 Iron national legal obligation that development must Rhine (Belgium vs. Netherlands) award of the be sustainable.” Some suggest, essentially, Arbitral Tribunal struck under the auspices of that the concept may not be sufficiently the Permanent Court of Arbitration provides specific and normative to become a custom- some guidance in this regard. In its decision, 8 As ary norm of international law, in itself. the Tribunal first recognized that: Lowe (1999: 30) notes wryly: “[T]he argument that sustainable development is a norm There is considerable debate as to what, of customary international law, binding on and within the field of environmental law, directing the conduct of states, and which can constitutes “rules” or “principles”; what be applied by tribunals, is not sustainable.” is “soft law”; and which environmental A commitment to promote sustainable treaty law or principles have contributed to the development of customary interna- development should be specific – or at least tional law . . . The emerging principles, normative enough to form the basis of a claim whatever their current status, make refer- against a state. What would commitment “to ence to conservation, management, notions promote sustainable development” actually of prevention and of sustainable develop- prescribe, prohibit, exempt or permit states ment, and protection for future generations. to do? With regards to prohibitions, it appears The Tribunal then continued to explain: unlikely that there exists a blanket prohibi- Today, both international and EC law tion against developing unsustainably. Or require the integration of appropriate envir- even against actions by a state to promote onmental measures in the design and imple- unsustainable development. However, these mentation of economic development activities. 360 9780415418768_4_025.qxd 26/11/2008 02:41PM Page 361

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Principle 4 of the Rio Declaration on (and costs) into the development process. Such Environment and Development, adopted in a principle might be somewhat weak, but it 1992 which reflects this trend, provides that is normative. It might even be extended, by “environmental protection shall constitute states, to include cases where the “develop- an integral part of the development process ment process” consists of defining new trade and cannot be considered in isolation from rules, or establishing new norms to govern it.” Importantly, these emerging principles transboundary investments. This said, surely now integrate environmental protection into the development process. Environ- it has limits. “Constituting an integral part” mental law and the law on development is not the same as “becoming a trump card”. stand not as alternatives but as mutually re- Further, defined this way the principle inforcing, integral concepts, which require might actually press states, à l’envers, ensure that where development may cause significant harm that environmental protection laws and pro- to the environment there is a duty to prevent, grammes not be advanced without taking or at least mitigate, such harm...This duty, social and economic development norms in the opinion of the Tribunal, has now into account. A recent decision in the become a principle of general international 10 International Court of Justice does suggest law. the outer boundary for such a principle, (emphasis added) in the form of a permissive norm – a right of states to promote sustainable development. As This determination was directly relevant for such the principle would mean, as highlighted the decision of the Tribunal in this case: in Principle 4 of Article 3 of the 1992 United Nations Framework Convention on Climate . . . economic development is to be recon- Change, that states “have a right to, and ciled with the protection of the environ- should, promote sustainable development.” ment, and, in so doing, new norms have As noted by Wesley Hohfeld (2001: 11–21), to be taken into consideration, including such a permissive right, to mean more than when activities begun in the past are now a simple privilege, would need to impose a expanded and upgraded.11 Applying the principles of international corresponding duty upon another. In this environmental law . . . [the] reactivation of the case, the other would be a state or other Iron Rhine railway cannot be viewed in isola- actor under international law. For instance, tion from the environmental protection measures another state would be under a duty not to necessitated by the intended use of the railway prevent, through their action or inaction, the line. These measures are to be fully integrated sustainable development efforts of the first. into the project and its costs.12 This would suggest that states have accepted, (emphasis added) over time, a prescription not to prevent the efforts of other states to promote sustainable Such a finding shows that there is a “funda- development by integrating environmental mentally normative” element of the prin- protection into their socioeconomic develop- ciple, in that its application persuaded the ment processes. Arbitral Panel that the costs of impact assess- And indeed, positive claims based on a ments and mitigation measures should be state’s “sovereign right to implement sus- borne by the party carrying out the develop- tainable economic development projects” ment (as an integral part of the reactivation were recently used by states in the 2006 of the Iron Rhine Railway), rather than by Pulp Mills on the River Uruguay case. In the party through whose territory the railway pleadings on Provisional Measures of July would pass. A principle of sustainable devel- 2006, the ICJ notes that Uruguay “maintained opment would require states to integrate that the provisional measures sought by environmental protection considerations Argentina would therefore irreparably 361 9780415418768_4_025.qxd 26/11/2008 02:41PM Page 362

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prejudice Uruguay’s sovereign right to im- Sustainable Development. Indeed, elements plement sustainable economic development of such a right, held by indigenous peoples projects in its own territory”; and asked the against their own countries, and by states Court: against other states, also appear to be gaining recognition in the recent decisions of [I]n particular to preserve its sovereign regional human rights tribunals.16 The tension right . . . to implement sustainable eco- between these two elements is, nonetheless, nomic development projects on its own clear, and neither of them provides a territory that do not, in its view, violate “sustainable development principle” alone. Uruguay’s obligations under the 1975 Rather, references to a principle of sustain- Statute or the anti-pollution standards of able development could be a form of “legal CARU.13 shorthand” for Principle 4 of the Rio It is possible that a concern for this right Declaration, which states that: of a state, forms the outer boundary of the [I]n order to achieve sustainable devel- principle of sustainable development and was opment, environmental protection shall a principal element in the ICJ’s reasoning constitute an integral part of the develop- in its first Order with regards to provisional ment process and cannot be considered in measures in the Pulp Mills on the River isolation from it. Uruguay case,14 where it stated: A principle of sustainable development [T]he present case highlights the import- viewed in this light would require that ance of the need to ensure environmental where development may cause significant protection of shared natural resources harm to the environment or to societies, states while allowing for sustainable economic have a duty to prevent, or at least mitigate, development.15 such harm as an integral part of the development process. The outer boundary of the This echoes the “concise restatement of principle would be a right to sustainable the Trail Smelter principle coupled with an development, as an extension of a well- affirmation of the principle of permanent recognized sovereign right of states to sovereignty over natural resources” (Lowe exploit their own natural resources.17 2007) in Principle 21 of the 1972 Stockholm This definitely provides a fundamentally Declaration and Principle 2 of the 1992 Rio normative character that is binding on states, Declaration: though as a double-edged sword. It would not forbid development as such. Rather, it States have, in accordance with the would require states not to prevent or frus- Charter of the United Nations and the prin- trate each other from promoting sustainable ciples of international law, the sovereign development, and “where development may right to exploit their own resources pursuant cause significant harm to the environment” to their own environmental and developmental policies, and the responsibility to would require states to take steps to address ensure that activities within their juris- a duty “to prevent, or at least mitigate, such diction or control do not cause damage to harm”. While the application of the princi- the environment of other States or of areas ple in international law would suggest that beyond the limits of national jurisdiction. this norm would only be relevant in a transboundary context, it should be noted that Such a right and its attendant responsibility ecological systems are globally and regionally were reaffirmed numerous times in the “soft interrelated in complex ways that science and law” 2002 Johannesburg Plan of Imple- technology have only begun to explore. mentation from the World Summit on Still, if a state can show that it has taken 362 9780415418768_4_025.qxd 26/11/2008 02:41PM Page 363

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measures to take environmental protection and weighty. There have been near universal into consideration in a development process, ratifications of treaties such as the United and that it has sought to prevent, or at least Nations Framework Convention on Climate mitigate, harm to the environment and the Change (UNFCCC) which has 192 parties, community, the state might well evoke the the United Nations Convention on Biological same principle to defend its right to sustain- Diversity (UNCBD) which has 190 parties, and able development. Bounded on one side by the United Nations Convention to Combat the Iron Rhine Railway award, and on the other Desertification and Drought (UNCCD) which by the Pulp Mills on the River Uruguay order, has 191 parties. As will be further discussed such a principle of sustainable development below, these treaties (among many others) con- might possess the fundamentally normative tain significant obligations on sustainable character to be identified as an emerging prin- development relating to the integration of ciple of customary law. However, in order environmental protection into the develop- to suggest that this principle could be recog- ment process (and vice versa). While it is not nized as a customary norm in international law, clear whether states are integrating environ- two elements must be shown in particular. mental protection and development due to their obligations under these treaties in the context of climate change, biodiversity and General practice of states desertification, or simply as a general practice The International Court of Justice has (which could be evidence of a customary prin- stressed the importance of “general practice” ciple), the practices themselves are certainly in the construction of customary law.18 A rule being undertaken. of customary law must be above all “a con- There is evidence of state practice in the stant and uniform usage practised by the universality of official announcements from States in question”,19 with the sole (somewhat heads of state and governments supporting and theoretical) exception of instant custom.20 “It committing to sustainable development as is how states behave in practice that forms the the integration of environmental protection and socio- basis of customary law, but evidence of what economic development from Stockholm, Rio a state does can be obtained of numerous and Johannesburg. There are records of sources” (Shaw 2003). State practice demon- statements and formal notes from ministers strating that a principle has become part of and senior officials expressing their country’s international customary law could be discerned commitments to sustainable development from many sources (ILC 1950: 368–72). For through fifteen years of meetings by the a principle of sustainable development, this United Nations Commission on Sustainable might include broad ratification of treaties Development in New York. The National on sustainable development; the records or Assessment Reports of States presented to the travaux préparatoires of international negotiations United Nations Commission on Sustainable and conferences which document formal Development recognize sustainable devel- notes or statements by state representatives; opment in this light, as well. Such Reports votes and other acts in the UN General are not simply generated by a few Western Assembly and other international organizations; or other States. For instance, the Report the pleadings of states before national and inter- of Micronesia notes that “. . . sustainable national tribunals and legal opinions by gov- development entails balancing the econo- ernment lawyers; and national legislation and mic, social and environmental objectives of the decisions of national courts. society in decision making”. And indeed, the evidence of some form of A brief survey of State pleadings (and the international commitment by states to pro- decisions of judges) from international courts mote sustainable development is significant in the Nuclear Tests cases,21 the Certain 363 9780415418768_4_025.qxd 26/11/2008 02:41PM Page 364

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Phosphate Lands in Nauru case,22 the at national or sub-national levels, that are GabDíkovo-Nagymaros case,23 the Iron Rhine specifically aimed at integrating environ- Arbitration,24 and the recent Pulp Mills on the ment and development considerations for River Uruguay case25 demonstrates that a broad sustainable development. Documented array of States are willing to argue for the National Strategies for Sustainable Development integration of environmental, economic and exist for states such as Australia, Brazil, the social concerns for sustainable development Dominican Republic, China, the European in international tribunal processes. In the Union, Japan, Mexico, South Africa, South GabDíkovo-Nagymaros case, Slovakia argued that Korea, among nearly 90 others. These strate- “there is if anything an even greater emphasis gies typically contain local activities to today on the need to allow States the freedom promote sustainable development, and even to develop their natural resources pursuant to some include international measures. There their own policies, and in a way that is sus- is also a growing body of national juri- tainable.”26 In recent cases, the arguments of sprudence in which courts indicate that states have been more explicit, for instance sustainable development is legally relevant, Belgium argued in the aforementioned Iron referring to the need to reconcile or integrate Rhine Arbitration that “the reactivation of the environment and development objectives.29 Iron Rhine is of major international interest, In sum, there is ample, significant and volu- in that it will contribute to sustainable devel- minous evidence of state practice making com- opment in each of its ecological, economic mitments to sustainable development, and and social pillars.”27 In the same fashion Alan linking this to the integration of environmental Boyle, as Counsel for Uruguay before the ICJ and social considerations into development in the public sitting for provisional measures decision-making. While the evidence does in the aforementioned Pulp Mills on the River not necessarily point to one specific and clear Uruguay case, argued that: principle, in the sense that a prohibition of armed attack provides a clear “thou shalt not” This is not a dispute in which the Court has or a permission of hot pursuit provides a clear to choose between one party seeking to pre- “thou canst”, it certainly demonstrates more serve an unspoiled environment and another party recklessly pursuing unsustainable devel- than mere repetition of a term. States make opment, without regard to the environment, commitments to sustainable development, or to the rights and interests of neighbor- and they do so seriously and near universally. ing States. It is a case about balancing the The answer to the question of opinio juris is, legitimate interests of both parties. It is a case however, not quite so straightforward. in which Uruguay has sought – without much co-operation from its neighbor – to pursue sustainable economic development Opinio juris – believed to be binding while doing everything possible to protect by states the environment of the river for the It is not necessarily easy to find evidence of benefit of present and future generations of opinio juris, as this requires demonstrating Uruguayans and Argentines alike.28 the actual motives underlying a state’s words There is also increasing state practice in and actions. Such evidence can be found national legislation on sustainable development in expressions of belief regarding acts of that seeks to integrate environmental and social international organizations and other inter- concerns into the development process. national meetings; statements made by rep- Nearly every state has, at the least, some form resentatives of states, and the conclusion of of environmental law in place which com- treaties and the same sources which provide mits to sustainable development, and several evidence of state practice.30 The problem, here, states have now also set further laws in place, is uncovering specific formal announce- 364 9780415418768_4_025.qxd 26/11/2008 02:41PM Page 365

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ments which evince that states have committed This Resolution, however, uses hortatory to either realize, or even promote sustainable language – “should become” rather “can be re- development, believing their decision to have cognized as”. This implies that the members been required by a binding international principle of UN General Assembly, in 1987 at least, did or obligation, rather than some other form of not yet recognize sustainable development as commitment (for instance, a political com- a guiding principle. Further, the UNGA does mitment to a common global purpose). not actually declare that sustainable develop- Unlike international treaties, or clearly ment should become a binding principle of recognized international customary law, the customary international law. Rather, it uses 1992 Rio Declaration and the Agenda 21, slightly different terms – a “central guiding along with the 2002 Johannesburg Declaration principle” and casts its net wider than states and Johannesburg Plan of Implementation are not to include private institutions, organizations binding. Rather, such consensus declarations and enterprises. This suggests that the UNGA by states are usually described as “soft law.”31 was not necessarily seeking to recognize sus- UN General Assembly resolutions, while tainable development as binding law in the they can be considered evidence of an emer- opinio juris sense. ging customary principle and while they can However, it could be argued that a bind- reﬂect treaty law, are similarly not considered ing commitment to sustainable development legally binding as such. However, this does has emerged since the days in 1987 when the not mean that such consensus declarations of UNGA stated that it should become a central states are without legal relevance. Indeed, “soft guiding principle of governments and others. law” declarations may give rise to legitimate To do this successfully, it is necessary to show expectations, in that states, assumed to be that while sustainable development was not acting in good faith when they agree to such yet accepted in 1987, it has since (quite statements, might be precluded from delib- rapidly) evolved into a customary principle of erately violating agreements or commitments international law. assumed in soft law without notice or at least Certain evidence can be found in the assumed to be acting in accordance with such pleadings and decisions of international commitments (Allott 2002a: 308). In a tribunals since 1987. For instance, in the related manner, “soft law” can provide evi- 1997 GabDíkovo-Nagymaros (Hungary vs. dence of emerging customary norms (Boyle Slovakia) case, Hungary states in its pleadings 2006: 149–53). that: “Hungary and Slovakia agree that the One “soft law” statement on state beliefs principle of sustainable development, as for- is found in the UNGA Resolution which mulated in the Brundtland Report, the Rio accepted the Brundtland Report, in which UN Declaration and Agenda 21 is applicable to member states solemnly note the “accelerat- this dispute.”32 A series of bilateral treaties also ing deterioration of the human environment provide evidence that further states are com- and natural resources and the consequences mitted to sustainable development as a prin- of that deterioration for economic and social ciple. For instance, the treaty of the Basis for development” and then declare: Relations between Finland and the Russian Federation, calls for the mutual “implemen- . . . sustainable development, which implies tation of the principles of justice, basic meeting the needs of the present without universal human values and sustainable compromising the ability of future generations to meet their own needs, should development in accordance with the Charter 33 become a central guiding principle of the of the United Nations”. The consolidated United Nations, Governments and private version of the Treaty on European Union institutions, organizations and enterprises . . . among 27 European states also calls “to pro- (United Nations 1987) mote economic and social progress for their 365 9780415418768_4_025.qxd 26/11/2008 02:41PM Page 366

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peoples, taking into account the principle of take environmental protection into account sustainable development”.34 in the development process and vice versa (as Further, if it was formulated as a binding stated in the Iron Rhine Railway arbitration). legal “right to promote sustainable devel- A slightly more optimistic view would be that opment”, it is possible to argue that several states are also building on this commitment near-universal treaties actually do recognize to integration of environment, social and eco- sustainable development as a principle of nomic priorities in the development process, international law among the parties. As and beginning to recognize a right of states noted earlier, one of the most significant is to promote sustainable development, imply- the United Nations Framework Convention on ing a related duty not to interfere unduly with Climate Change (UNFCCC). In Article 3 of each others’ efforts to do so (as implied in the the UNFCCC, entitled Principles, states Uruguay River Pulp Mills case). To support this recognize that: contention, there is clearly a great deal of general state practice. And there appears to 4. The Parties have a right to, and should, be opinio juris which supports the proposal that promote sustainable development. Policies certain states including the EU members do and measures to protect the climate system this because they feel bound by a principle of against human-induced change should be sustainable development. However, there is appropriate for the specific conditions of a lingering lack of clarity as to whether most each Party and should be integrated with national development programmes, taking states undertake such a commitment due to into account that economic development a sense of legal obligation, or simply due to is essential for adopting measures to address a common commitment to a noble political climate change. goal. It is not clear, essentially, that a principle of sustainable development has emerged In the UNFCCC, therefore, the promotion in international customary law as yet. of sustainable development is framed as one of the “Principles” of the treaty, where it is Sustainable development as an described as a “right”. This right to promote object and purpose of international sustainable development appears to refer law directly to the work of the parties to integrate environmental protection with devel- Whether or not sustainable development opment processes. It is also, however, could be described as customary rule of framed as a hortatory commitment to “pro- international law, however, there are also other mote” (“should” rather than “shall” or “are ways that the concept has legal relevance today. bound to”). Further, once recognized, the Indeed, a search for one agreed customary parties immediately sought to further define norm of sustainable development might this “principle” by noting in caveat that actually be a search in the wrong direction. climate protection measures need to be A second possibility is that sustainable devel- appropriate for different parties and integr- opment could be characterized as an objec- ated into development programmes, and by tive of states, and even an internationally the recognition that economic development recognized policy objective of the world is still “essential”. community as a whole. As a global objective, In sum, if sustainable development were a similar to other objectives such as “world principle of international law (recognized in peace”, “respect for human rights” and treaty and emerging as customary), it seems “conservation of nature”, sustainable devel- most likely that the norm would be mainly opment would therefore be first and foremost related to the integration of environment and characterized as part of the object and pur- socioeconomic development: that states shall pose of many international treaties. 366 9780415418768_4_025.qxd 26/11/2008 02:41PM Page 367

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Policy objectives set out goals to be It is also relevant in regimes to implement reached, generally improvements in some eco- further treaties that are related to sustainable nomic, political or social situation deemed development, such as the several hundred desirable by the community.35 Arguments of agreements highlighted by states as delivery policy justify a political decision by showing mechanisms for the priorities outlined in the that the decision advances or protects a Johannesburg Plan of Implementation of collective goal of the community as a whole the World Summit on Sustainable Devel- (Evans 2006). Policies may be persuasive but opment 2002. As object and purpose of are not legally binding as such on judges though these treaties alone, the concept could be as Boyle argues, principles may very well be extremely important and influential in inter- (Boyle 2006: 149). national law. It could affect interpretation Particular relevance is given to policy of treaty obligations in a dispute related to objectives when agreed among States. As environment or development issues, would argued by Martti Koskenniemi, to “say that guide the implementation of the agreements international law is for ‘peace’, ‘security’ and and would even shape the further evolution ‘justice’ is to say that it is for peace, security of the treaty regimes themselves. This is and justice as agreed and understood between the important because few international treaties members of the system” (Evans 2006). A policy today, particularly in the field of sustainable objective is not irrelevant in international law. development, are simply contracts among A great deal of international law is found in states. As international relations theorists like international treaties, which lay out the rules Stephen Krasner (1999: 41–72) have suggested, that govern a relationship between states that to understand the norms found in international are parties to the accord. The customary rules treaties and how they are implemented, it is governing treaties are laid out in the Vienna important to analyse the broader institutions Convention on the Law of Treaties,36 which “cov- which form regimes around treaties. ers the most important areas and is the start- References in the 1972 Stockholm ing point for any description of the modern Declaration, the UNGA Resolution on the law and practice of treaties” (Aust 2000: 6). Brundtland Report, the 1992 Rio Declaration Article 31, as the general rule of interpreta- and Agenda 21, and the 2002 Johannesburg tion, provides at 1 that: “A treaty shall be inter- Declaration and Johannesburg Plan of Imple- preted in good faith in accordance with the mentation provide convincing evidence to ordinary meaning to be given to the terms of justify finding sustainable development to the treaty in their context and in the light be the object and purpose of international of its object and purpose.” And at 2, the treaty law. This view is found, for instance, Convention further states that: “The context in Chapter 39 of Agenda 21, entitled Inter- for the purpose of the interpretation of a treaty national Legal Mechanisms and Instruments, shall comprise, in addition to the text, at para 39.1, which refers to “the following including its preamble and annexes.”37 As such, vital aspects of the universal, multilateral and although the clauses contained within Art- bilateral treaty-making process”, focusing on icle 31 are not hierarchical, the starting point “(a) The further development of international for interpretation is the ordinary meaning to law on sustainable development, giving spe- be given to the terms, taking them in con- cial attention to the delicate balance between text, and in the light of the object and purpose environmental and developmental concerns; of the treaty. ...(b) The need to clarify and strengthen the Sustainable development is part of the relationship between existing international object and purpose for more than 30 treaties instruments or agreements in the field of which explicitly commit to achieve it, includ- environment and relevant social and eco- ing many trade and investment agreements. nomic agreements or instruments, taking 367 9780415418768_4_025.qxd 26/11/2008 02:41PM Page 368

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into account the special needs of develop- In the context of the UNFCCC, taking ing countries”, describing these accords as regime theory into account, it might even “treaty making in the field of international be suggested that while an uneasy agreement law on sustainable development”. Agenda 21 existed to permit recognition of the right also, at 39.10, refers to “disputes with other to promote sustainable development as a states in the field of sustainable development” Principle in the UNFCCC negotiations of and advocates “effective peaceful means of 1990–1992, by the 1997 negotiations of the dispute settlement . . . and their inclusion in Kyoto Protocol, consensus had evolved treaties relating to sustainable development”. sufficiently among the parties to recognize States are setting sustainable development as sustainable development as an “object and a goal or subject matter of international law, purpose” of the treaty. rather than as a principle of international law As a second example, the 1994 UN in itself. Convention to Combat Desertification and In the 2002 Johannesburg World Summit Drought, especially in Africa (UNCCD) on Sustainable Development, this charac- entered into force on 26 December 1996. In terization of “international law in the field the UNCCD, states make over 40 references of sustainable development” was not signi- to “sustainable” development, use, manage- ficantly modified. Rather, as noted above, the ment, exploitation, production and prac- focus was on implementation. States agreed, tices and/or unsustainable development and in the Johannesburg Plan of Implementation exploitation practices. While the sustainable at 148 (e) to mandate the UNCSD to “[t]ake use of land and water resources is, perhaps, into account significant legal developments in set as a Principle in Article 3, states also clearly the field of sustainable development, with due incorporated sustainable development as an regard to the role of relevant intergovern- “Objective” of the UNCCD. mental bodies in promoting the implemen- In the treaty, states speak both to their tation of Agenda 21 relating to international intention that an integrated approach will legal instruments and mechanisms”. “contribute to the achievement of sustain- The grand majority of treaties which able development” in particular areas, and make specific reference to the concept do so that the adoption of integrated strategies in a way that further supports a characteriza- will focus on “sustainable management tion of sustainable development as “pur- of land and water resources” leading to pose” whether or not it is a “principle”. For “improved living conditions”. This re- instance, and in contrast to certain elements sonates well with the concepts discussed of the UN Framework Convention on Climate above, in terms of integration of environ- Change (UNFCCC), the Kyoto Protocol mental, social and economic priorities in mentions sustainable development as an the development process, and the focus on objective, providing a set of measures that human well-being. states can take “in order to promote sustain- In a third example, the 2001 FAO Inter- able development” in the area of climate national Treaty on Plant Genetic Resources for change. It states, at Article 2, that: Food and Agriculture (Seed Treaty), adopted by Conference Resolution 3/2001, seeks to Each Party included in Annex I, in achiev- secure conservation and sustainable use of plant ing its quantified emission limitation and genetic resources for food and agriculture reduction commitments under Article 3, in order to promote sustainable development, shall: and the fair and equitable sharing of benefits (a) Implement and/or further elaborate derived from their use, in harmony with the policies and measures in accordance with its UNCBD, for sustainable agriculture and food national circumstances, such as . . . security. The Seed Treaty contains 24 refer- (emphasis added) ences to “sustainable” agricultural develop- 368 9780415418768_4_025.qxd 26/11/2008 02:41PM Page 369

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ment, use and systems. Sustainable use of of the Danube and into the side-arms on genetic resources is clearly recognized as an both sides of the river. “Objective”. In Part 1, which establishes (emphasis added) Objectives at Article 1.1, states agree that the “objectives of this Treaty are the conserva- To each achieve the objective, the Court tion and sustainable use of plant genetic ordered the parties to integrate environmen- resources for food and agriculture and the fair tal protection into their development project and equitable sharing of the benefits arising by requesting them to “look afresh at the out of their use, in harmony with the effects on the environment” and “find a Convention on Biological Diversity, for sus- satisfactory solution”. The majority could be tainable agriculture and food security”. In Article requiring States to deliver on a commonly 6, the parties actually define what is meant held sustainable development objective. The by sustainable use of plant genetic resources, Nuclear Tests Case,39 the Kasikili/Sedudu Case including the development and maintenance (esp. Judge Weeramantry’s Dissent),40 the of more than seven specific legal and policy findings in the Tribunal Award of the Iron measures. This is important as the Seed Rhine Arbitration41 and the Order on Pro- Treaty is a recent instrument, and therefore visional Measures in the Pulp Mills on the River offers an insight into states’ most current Uruguay Case42 of the International Court of conception of the legal status of sustainable Justice could also be interpreted in a way that development. Also, in this Treaty, states supports this characterization. focus on “sustainable use” in one particular Finally, while as discussed earlier, many context, that of plant genetic resources for food national laws do refer to a principle of sus- and agriculture. In this specific sector, it tainable development when focusing on appears possible to pinpoint fairly precisely the their intention to integrate environmental meaning of sustainable use of the resource, and and social issues into development pro- the type of measures that are required to ensure cesses, many other national laws and policies that it takes place. adopted since the 1992 Rio Earth Summit Since the 1992 Rio Earth Summit, as appear to set sustainable development as an noted earlier, international tribunals and objective rather than principle.43 courts have also begun to pronounce on sustainable development. While certain decisions, Sustainable development as an noted above, appear to support the contention interstitial norm and its principles that sustainable development is a customary principle of international law, others also In the context of many multilateral and bilat- support the policy objective approach. For eral treaties, states have committed themselves instance, in the GabDíkovo-Nagymaros Case,38 to a policy objective of sustainable develop- the majority stated that: ment. Sustainable development was a once marginalized “second objective” of such environmental and economic treaties, but This need to reconcile economic develop- it is gaining prominence as these regimes ment with protection of the environment develop and evolve. Several social and is aptly expressed in the concept of sustainable human rights treaties, inasmuch as they development. For the purposes of the present address development issues, are also incor- case, this means that the Parties together should look afresh at the effects on the porating a sustainable development objective. environment of the operation of the As the object and purpose of international Gabdíkovo power plant. In particular they treaty law, sustainable development will be must find a satisfactory solution for the vol- taken into account and will shape the inter- ume of water to be released into the old bed pretation of the treaty rules and beyond. 369 9780415418768_4_025.qxd 26/11/2008 02:41PM Page 370

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Looking further, it is not certain that decision makers to curb the worst social and sustainable development has become a bind- environmental excesses of nations in economic ing customary norm of international law, development activities, and exert persuasive in itself, as yet. But neither is it accurate to pressure for the internalization of otherwise describe sustainable development as simply a externalized or marginalized social, economic vague international policy goal, void of norm- or environmental concerns. ative value outside the confines of treaties. While the question of sustainable devel- Outside specific treaty regimes, the con- opment itself as a customary legal norm as well cept may still serve as a type of norm in as an object/purpose of treaty law may not its own right, one that exerts a certain pull yet be resolved, it is clear that there exists between conflicting international norms a growing body of international law on relating to environmental protection, social sustainable development. As such, “interna- development and economic growth (Lowe tional law on sustainable development” today 2000a: 214–15). Sustainable development, as can be used to describe a “group of congru- presently applied in treaty negotiation or ent norms”, a corpus of international legal dispute settlement, might also be described principles and treaties which aim to promote as a “meta principle”, one that acts “upon sustainable development, often in the areas of other legal rules and principles – a legal con- intersection between international economic cept exercising a kind of interstitial norma- law, international environmental law and tivity, pushing and pulling the boundaries of international human rights law (Cordonier true primary norms when they threaten to Segger and Khalfan 2004). Certain pro- overlap or conflict with each other” (Lowe cedural and substantive norms and instruments, 2000a). This characterization provides an which help to balance or integrate these alternative explanation to insert reasonings fields, form part of this body of international in the GabDíkovo-Nagymaros case,44 and could law and play a role in its implementation. In also be used to analyse other more recent its interstitial character, sustainable develop- relevant decisions in arbitrations and provi- ment may push or pull states to use and apply sional measures cases. certain international mechanisms and practices, From this viewpoint, the substantive and guide the future development and imple- aspect of the “interstitial norm” is the re- mentation of international law. quirement that economic development de- Taking this interstitial character into cision making take social and environmental account, evocation of the sustainable devel- norms and concerns into account (and vice opment “policy objective” might therefore versa). All three sets of priorities need to be imply further normative consequences. As reflected in the substantive outcomes of a given states adopt sustainable development as a dispute or conflict, even when this means extra policy objective, this can bring further inter- costs for the proponent of a project (Iron national legal norms into play to realize this Rhine), and also when states must and respect interstitial purpose. Just as the prohibition on for a right to continue a development pro- armed attack serves to maintain world peace, ject once these issues have been taken into and a prohibition on trade in endangered consideration (Uruguay Pulp Mills). While species serves to conserve nature, so might a there are few bright lines, and no hard and prohibition on exhaustion of a transbound- fast rule, it is not “sustainable” to allow one ary natural resource without good faith or the other priority to completely “fall off consultation with affected states serve to the table” in situations where common promote sustainable development. international concerns are at stake. Viewed in Certain principles which aim to contri- this way, beyond treaty law, sustainable bute to and achieve sustainable development development can be invoked by judges and as an objective may even come to be used so 370 9780415418768_4_025.qxd 26/11/2008 02:41PM Page 371

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often, and to be accepted so generally, that precautionary approach to human health, they gain recognition as customary interna- natural resources and ecosystems. Fifth, it tional rules themselves, binding on all States underlines the principle of public participa- that have not persistently objected. The pro- tion and access to information and justice. cess of developing principles of international Sixth, the ILA New Delhi Declaration posits law related to sustainable development has a principle of good governance. Seventh, and been reasonably complex. The most impor- perhaps most telling, the Declaration recog- tant undertakings ran parallel to the global nizes a principle of integration and interrela- policy making events outlined earlier, and tionship, in particular in relation to human included the process of elaborating the 1972 rights and social, economic and environ- Stockholm Declaration, the 1987 Brundtland mental objectives. This last may indeed be Commission’s Legal Experts Group on simply another more accurate name for the Principles of International Law for the Pro- norm discussed above as a “principle of sus- tection of the Environment and Sustainable tainable development.” Development, the 1992 Rio Declaration As such, several rather functional principles and other efforts. guide the main international treaties on sus- In 2002, the International Law Asso- tainable development and are gaining recog- ciation’s Committee on the Legal Aspects of nition by states. This list is not exhaustive. Sustainable Development released its New And in the most part they are not yet recog- Delhi ILA Declaration on Principles of Inter- nized as binding rules of customary interna- national Law relating to Sustainable Development tional law. In some cases, they might never as a Resolution of the 70th Conference of be. However, they are increasingly made the International Law Association in New operational in binding international treaties, Delhi India, 2–6 April 2002 (New Delhi forming part of international law and policy Declaration 2002). Adopting the approach in the field sustainable development. discussed above, the ILA New Delhi Declaration notes that “sustainable development is now widely accepted as a global Conclusions objective and that the concept has been amply recognized in various international This chapter has considered the normative and national legal instruments, including status of sustainable development in inter- treaty law and jurisprudence at international national law. Is sustainable development a and national levels . . .” The 2002 New Delhi binding principle of international customary Declaration provides the most current bench- law? Is it a policy objective found as the pur- mark of the important principles in this field pose and subject matter of a growing num- and outlines seven principles of international ber of international treaties? Is it something law on sustainable development (Cordonier else as well? Segger and Khalfan 2004). First, it recognizes In conclusion, it is not clear that sustain- a duty of states to ensure sustainable use able development has yet been accepted as a of natural resources whereby States have binding customary norm in international law. sovereign rights over their natural resources, However, as noted by Boyle and Freestone and a duty not to cause (or allow) undue dam- (1999: 17, citing Sands 1994): “[E]ven if there age to the environment of other States in the is no legal obligation to develop sustainably, use of these resources. Second, it recognizes there may nevertheless be, through incremental a principle of equity and the eradication of development, law ‘in the field of sustainable poverty. Third, it recognizes a principle of development’.” A growing body of interna- common but differentiated obligations. tional treaty law on sustainable development Fourth, it recognizes a principle of the is being implemented by states, and when states 371 9780415418768_4_025.qxd 27/11/2008 11:36 AM Page 372

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commit to sustainable development in a March 3, 1973, entered into force July 1, 1975) treaty or international legal process, it is not 993 U.N.T.S. 243, 12 I.L.M. 1085. legally meaningless. It involves an obligation 2 In December 2000, the UN General Assembly (UNGA) decided to convene a to seek balance between sometimes conflict- 10-year review of progress since UNCED ing economic, environmental and social pri- (A/RES/55/199). See United Nations orities in the development process, in the 2000b. interests of future generations. The balance 3 Johannesburg Declaration (n. 75) [5]. can be achieved through procedures and 4 The other significant commitments from the meeting include: using and producing chem- substantive obligations which differ depend- icals in ways that do not harm human health ing on the treaty instrument and the area of and the environment; reducing biodiversity loss law and policy that it regulates. Further- by 2010; restoring fisheries to their maximum more, the normative consequences of a sustainable yields by 2015; establishing a rep- commitment to sustainable development resentative network of marine protected areas by 2012; improving developing countries’ may not be the same as a straightforward pro- access to environmentally sound alternatives to hibition or prescription. However, if one ozone depleting chemicals by 2010; and adopts a more complex view of international undertaking initiatives by 2004 to implement law as part of a series of interactional the Global Programme of Action for the pro- regimes, a legal commitment to sustainable tection of the Marine Environment from Land Based Sources. development has interstitial meaning and 5 Convention for Cooperation in the Protection and normative force both in international treaties, Sustainable Development of the Marine and and in “soft law” cooperation arrangements. Coastal Environment of the Northeast Pacific Its interstitial normative character may well (February 18, 2002). encourage states to adopt and implement sus- 6 Lowe 1999: 27; he references further, D’Amato 1990. tainable development related principles and 7 North Sea Continental Shelf (n. 120) [63]. measures, both inside existing treaty regimes, 8 For different views on this point, see Sands and even beyond. 1994. A great deal of progress has been made 9 Case Concerning the GabDíkovo-Nagymaros in recent years, though more is needed. Project: p. 85 (Separate Opinion of Vice- President Weeramantry). Turning to the future, states and others have 10 In the Arbitration Regarding the Iron Rhine [58]– increasingly begun to focus on implementa- [59]. tion in different contexts, developing scien- 11 In the Arbitration Regarding the Iron Rhine [222]. tific and legal instruments to ensure more 12 In the Arbitration Regarding the Iron Rhine [223]. sustainable use or management of a particu- 13 Argentina vs. Uruguay, Case Concerning Pulp Mills on the River Uruguay (2006) Request for the lar resource, and to promote sustainable Indication of Provisional Measures: Order of development by re-directing a specific type July 13, 2006, General List No. 135, 45 ILM of economic activity. In this way, international 1025 [67]. law on sustainable development is defining 14 Argentina vs. Uruguay, Case Concerning Pulp Mills new rights and duties among states. The [67]. 15 Argentina vs. Uruguay, Case Concerning Pulp Mills challenge for future legal scholarship – and [80]. action – will be to implement this global 16 See also Inter-American Court of Human commitment in the interest of a common Rights Case of the Sawhoyamaxa Community future. (Paraguay) (2006) [137]–[141]; Inter- American Court of Human Rights Case of the Saramaka Peoples (Suriname) (2007) [93]–[95], 122, 129–32; African Commission on Human Notes and Peoples’ Rights Case of the Social and Economic Rights Action Center and the Center for 1 Convention on International Trade in Endangered Economic and Social Rights vs. Nigeria (2002) 96 Species of Wild Fauna and Flora (adopted AJIL 937, 47 J African L 126 [52].

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17 Portugal vs. Australia, Case concerning East at 3 p.m., at the Peace Palace) 30-31.http:// Timor (1995) Judgment, Dissenting Opinion of www.icj-cij.org/docket/files/135/13128.pdf. Judge Weeramantry, General List No. 84, 29 For example, the Indian cases address envir- [1995] ICJ 90, 34 ILM 1581, pp. 197–200; onmental pollution as an issue affecting the United Kingdom of Great Britain and Northern human right to life: Charan Lal Sahu vs. Union Ireland vs. Iceland, Case concerning the Fisheries of India AIR 1990 SC 1480; Koolwal vs. Jurisdiction (1974) Merits, Dissenting Opinion Rajasthan AIR 1998, Raj.2; other national cases of Judge Petrel, General List No. 55, [1974] include Leatch v. National Parks and Wildlife ICJ 3 p. 161; Belgium vs. Spain, Case Concern- Service and Shoalhaven City Council, 81 ing the Barcelona Traction, Light and Power Com- LGERA 270 (1993) (NSW Land and Environ- pany, Limited (New Application: 1962) (1970) ment Court, Australia); Vellore Citizens (Second Phase, Separate Opinion of Judge Welfare Forum vs. Union of India [1996] 5 SCC Jessup) General List No. 50, [1970] ICJ 3, 647 (Supreme Court, India); Balankulama vs. pp. 165–167; United Nations 1972b: XXVII The Secretary, Ministry of Industrial Develop- [1]; Weiss and Schrijver 2004. ment, SAER, Vol 7(2) June 2000 (Supreme 18 Nicaragua vs. USA, Case concerning Military and Court, Sri Lanka – Supreme Court of the Paramilitary [98]. Democratic Socialist Republic of Sri Lanka). 19 France vs. United States of America, Case See also Minors Oposa vs. Secretary of the Depart- Concerning Rights of Nationals of the United ment of Environment and Natural Resources States of America in Morocco (1952) Merits, (DENR), 33 I.L.M. 173 (1994) (Philippines), General List No. 11, ICJ 176, p. 200; Colombia although the case addressed mainly questions vs. Peru, Asylum Case (1950) Judgment, of standing in national law on behalf of future General List No. 7, ICJ 266, pp. 276–7. generations. And see Rajendra Parajuli and 20 Cheng 1965; Federal Republic of Germany/ Others vs. Shree Distillery Pvt. Ltd. and Others, Netherlands, North Sea Continental Shelf (1968) the Supreme Court of Nepal (Writ No. 3259, Judgment of February 20, 1969, General List: 1996) stated that sustainable development Nos. 51 and 52, ICJ [43]. means “every industry has an obligation to run 21 Nuclear Tests Case (New Zealand vs. France) its development activities without creating (1995) Request for an Examination of environmental deterioration. The environ- Situation in Accordance with Paragraph 63 ment should not be viewed narrowly. It is of Court’s Judgment of December 20, 1974: imperative for any industry to be cautious Order, Dissenting opinion by Judge towards the environment while it is in oper- Weeramantry, General List No. 97, ICJ 288. ation.” The Court ordered the company to 22 Certain Phosphate Lands in Nauru (Nauru vs. comply with a prior agreement to keep the Australia) (1992) Preliminary Objections: environment free of pollution in the affected Judgment, General List No. 80, ICJ 240, 32 area. ILM 1471. 30 Evans 2006: 123–129. 23 Case Concerning the GabDíkovo-Nagymaros 31 Agenda 21: Ch 11, 12, 18, 20, 21 and 22. See Project. also Chinkin 1989. 24 In the Arbitration Regarding the Iron Rhine 32 Case Concerning the GabDíkovo-Nagymaros (Ijzeren Rijn) Railway, Belgium vs. Netherlands Project [90]. (2005) Arbitral Award of May 24, 2005. 33 Basis for Relations between Finland and the Available at http://www.pca-cpa.org/ Russian Federation (signed January 20, 1992, showfile.asp?fil_id=377. entered into force July 11, 1992) 1691 UNTS 25 Argentina vs. Uruguay, Case Concerning Pulp Mills. 255. 26 Case Concerning the GabDíkovo-Nagymaros 34 Consolidated Versions of the Treaty on Euro- Project (Hungary/Slovakia) (Memorial submit- pean Union (signed February 17, 1992) OJ C ted by the Slovak Republic) 294. http:// 321E of December 29, 2006. http://eur-lex. www.icj-cij.org/docket/files/92/10939.pdf. europa.eu/en/treaties/index.htm. 27 In the Arbitration Regarding the Iron Rhine 35 See also Koskenniemi (2006b: 64–6), where (Ijzeren Rijn) Railway (Belgium vs. Nether- he argues: “We do not honour the law lands), (Memorial submitted by Belgium). because of the sacred aura of its text or its http://www.pca-cpa.org/upload/files/BE%20 origin but because it enables us to reach Memorial.pdf. valuable human purposes . . .” However, as 28 Case Concerning Pulp Mills on the River Uruguay he argues later, “there never are simple, (Argentina vs. Uruguay) (Verbatim Record of the well-identified objectives behind formal rules. Public sitting held on Thursday June 8, 2006, Rules are legislative compromises, open-ended

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and bound in clusters expressing conflicting rules as formulated in Articles 31 and 32 of that considerations.” Convention to a treaty concluded in 1891, 36 Vienna Convention on the Law of Treaties Indonesia did not dispute that the rules (signed May 23, 1969, entered into force codified in these articles were applicable. See January 27, 1980) 1155 UNTS 331, 8 ILM 679. Case Concerning Sovereignty over Pulau Ligitan The provisions on interpretation of treaties and Pulau Sipadan (Indonesia vs. Malaysia) contained in Articles 31 and 32 of the Vienna ( Judgment) General List No. 102 [2002] ICJ Convention reflect pre-existing customary 625 [37]–[38]. international law, as referred to in Article 4 of 38 Case Concerning the GabDíkovo-Nagymaros the Convention, and thus may (unless there are Project [140]. particular indications to the contrary in the treaty 39 Nuclear Tests Case [341]–[344]. itself ) be applied even to treaties concluded 40 Kasikili/Sedudu Island [87]–[88] (Dissenting before the entry into force of the Vienna Opinion by Judge Weeramantry). Convention on the Law of Treaties in 1980 and 41 In the Arbitration Regarding the Iron Rhine also to non-parties. [58]–[59]. 37 The International Court of Justice has applied 42 Argentina vs. Uruguay, Case Concerning Pulp Mills customary rules of interpretation, now [80]. reflected in Articles 31 and 32 of the Vienna 43 See Peru’s State Policies on Sustainable Convention, to a treaty concluded in 1955: Case Development and Environment. Available at Concerning the Territorial Dispute (Libyan Arab http://www.conam.gob.pe/modulos/home/ Jamahiriya vs. Chad) ( Judgment) General List PolicitaDeEstado.asp; see also Colombia’s No. 83 [1994] ICJ 6, (1994) 33 ILM 571 [41]; 2007 Report on the National Development and to a treaty concluded in 1890, bearing Plan. http://www.dnp.gov.co/paginas_detalle. on rights of states that even on the day of aspx?idp=235. For a survey of advances in more the judgment were still not parties to the than 60 countries of all regions of the world, Vienna Convention: Kasikili/Sedudu Island see FAO, Law and Sustainable Development (Botswana/Namibia) ( Judgement) General List Since Rio: Legal trends in agriculture and natural No. 99 [1999] ICJ 1045, (2000) 39 ILM 310 resource management FAO Legislative Study 73 [18]; In another case, the Court noted that (FAO, Rome 2002). Indonesia was not a party to the Vienna 44 Case Concerning the GabDíkovo-Nagymaros Convention, but nevertheless applied the Project.

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26 WTO law and sustainable development

Markus W. Gehring

This chapter focuses on the interface between trade The chapter argues that the relationship and sustainable development. It first gives an between WTO law and sustainable development introduction and overview of WTO law then briefly is not yet fully determined. To ensure that inter- examines the historical development of the WTO national trade law can deliver on sustainable as a legal order explaining the most important legal development in the current context, a constructive, principles, such as most favored nation and national integrated approach is needed to address overlaps treatment. After a short explanation of the dispute between social development, economic development settlement system, the chapter illustrates some of and environmental protection. This approach must the most important sustainable development focus specifically on achieving solid results for de- challenges as defined in the World Summit on veloping countries and for development in general. Sustainable Development. It proposes three fields of study of the trade – sustainable development inter- In recent years as international trade compacts face: negotiation, trade disputes and innovative have proliferated and the scope of World Trade instruments. The chapter discusses how limited Organization (WTO) activities has extended attempts have been made to introduce the concept beyond purely economic parameters, there of sustainable development into the international has been a growing awareness that trade has trading system. This hesitation, largely due to a developmental, social, environmental, and “trade-only” ethos of the organization, was only health implications. Given these nexuses, it overcome after certain seminal disputes had been is crucial that trade law regulating transactions decided. After the decision in U.S.–Shrimp that is informed by a holistic perspective that takes sustainable development figured prominently in into account potential impacts from a sus- the Doha Development Agenda. Two more recent tainable development point of view. The disputes help to illustrate the nature of sustainable infrastructure of sustainable development development arguments made in the WTO dis- must reconcile three premises: the trade per- pute settlement. The chapter then points to spective is adamant that economic liberaliza- innovative mechanisms that have been used by tion provides the most efficient means of WTO member states to integrate trade and envir- environmental protection and societal better- onment or trade and sustainable development more ment; the environmental viewpoint asserts broadly. that the status quo is fatally harming natural

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capital and must be modified; and the devel- cooperation in many areas such as trade, opment schema prioritizes poverty eradica- labor, and competition. This comprehensive tion or at least reduction. economic agenda failed, largely because the U.S. Senate did not approve the treaty. Nevertheless, one part of the Havana Trade law Charter, the General Agreement of Tariffs and Trade (GATT), was enacted provisionally in The nature of the legal order of the World 1947 and formed the basis for almost 50 years Trade Organization is an important starting of operation. The GATT focused speci- point. Trade law is one of the oldest areas of fically on trade in goods and did not include international law. Most very early “interna- any other area of international trade or eco- tional” treaties granted trade concessions and nomic regulation. This narrow scope was part allowed products to be traded from one of its success in attracting many countries as ancient city state to another. As such, there contracting parties and achieving significant is no right to free trade in international law. tariff reductions in seven rounds of trade This can be contrasted with, for instance, the negotiations. After significant tariff reductions, freedom of the high seas, and means that it is the GATT 1947 contracting parties recognized every country’s sovereign decision to allow that other barriers – outside the purview of trade with another country or not. “trade in goods” – were becoming more Early works by economists such as Adam important and impeded exports. Thus, dur- Smith, David Ricardo, and John Stuart Mill ing the late 1970s, in the Tokyo Round suggested that countries could benefit eco- of trade negotiations, additional agree- nomically from free trade between them, as ments were adopted, dealing with technical it allows each to build on their respective com- barriers to trade, food standards, dumping and parative advantages. The advent of free trade subsidies. In 1994, after nearly a decade of treaties brought a moderate degree of liber- deliberations and negotiations, the GATT was alization, but by the 1860s many countries replaced by the WTO. quickly returned to protectionist policies in Today’s world trade law is based on sev- response to fears of British economic domin- eral levels of international trading regimes, and ance. After a period of relative stability based can be found in two major sets of agreements: on the gold standard, countries began to exercise their sovereign right to determine law concerning the WTO trade relations, leading to a period of high international trade law stemming from protectionism after the depression of the late bilateral or regional trade agreements. 1920s and 1930s. Several important countries sought to raise barriers and isolate them- The WTO, despite unsuccessful attempts to selves from the world economy, in order to renegotiate some of its rules and a shift of focus protect their own industry. However, most within the international community towards countries returned to multilateralism in the late regional trade agreements, is still at the heart 1930s by developing reciprocity in their of the international trade regime. At the time trading relationships, granting tariff conces- of publication, it has 152 extremely diverse sions between countries on a mutual basis. member states, with some important inter- This multilateralism also formed the basis national economic actors such as Russia for the allied post-war economic discussions, involved in membership negotiations. Argu- which eventually led to the negotiation of the ably, the exponential increase in trade in Charter for an International Trade Organ- goods during recent decades was due to the ization (the so-called Havana Charter), stability and predictability of the international which included provisions mandating trading system. The Uruguay Round of 376 9780415418768_4_026.qxd 26/11/2008 02:41PM Page 377

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negotiations leading to the creation of the practices and “dumping” (i.e. product sale in WTO also saw the inclusion of new issues such a foreign country below the sales price in the as trade in services and trade-related intellec- country of origin or below cost plus dis- tual property rights (IPRs), and aimed to bring tribution price). agriculture and textiles back under GATT The WTO agreements are broadly organ- disciplines. ized into three pillars – goods, services and Fundamentally, the WTO is a member- intellectual property rights (see Table 26.1). driven organization with a comparatively The goods pillar is the largest, including agree- small Secretariat. The WTO’s mandate is to: ments on many different aspects of international goods trade. There are also plurilateral administer the WTO agreements agreements signed only by a subset of the provide a forum for trade negotiations WTO membership, and various cross-cutting settle trade disputes accords. monitor national trade policies Of course, such an overview of the WTO facilitate technical assistance and train- treaty framework provides only the beginnings ing for developing countries and of an accurate picture of WTO law. The main promote cooperation with other inter- commitments of WTO members are con- national organizations. tained in individual detailed country schedules attached to GATT (tariff schedules) and In addition to the development of the WTO GATS (services schedules). These two docu- regime, there has been rapid growth in ments are comprehensive listings of all the regional trade agreements and bilateral agree- products for which the WTO member in ments, which exist parallel to the ambit of the question has accepted a commitment to a bind- WTO but must conform to its principles. ing tariff at a particular level. For example, According to GATT rules, regional trade the tariff for microwave ovens for imports into agreements should serve as “building blocks,” the United States is bound at 4% according not “stumbling blocks,” to facilitate the to value, and the United States has completely functioning of the world trading system. liberalized architectural services in cross- This means that a multilayered analysis of border supply. agreements governing trade is crucial; it is not sufﬁcient to only analyze the implications of WTO law, while ignoring preferential rules Settlement of disputes in world enshrined among trading partners in regional trade law trade agreements or national rules which implement international trade law regimes. Trade disputes were a common phenomenon in the later years of GATT 1947. Indeed, the animosity and absence of middle WTO agreements ground in some disputes between the United States and the European Union triggered a The WTO agreements and dispute settlement new approach to dispute settlement in the outcomes – the latter having at least strong WTO. Instead of a positive vote to adopt a persuasive power or de facto precedent char- dispute settlement decision, as was required acter – largely determine international trade by the GATT, the WTO now operates in rules with relevance for both the private and reverse, so that decisions under its dispute public sector. These WTO agreements also settlement mechanism can only be dismissed contain guidelines governing international by the unanimous vote of all members. This commercial conduct and guard against trade negative consensus means that even the party distorting behavior such as unlawful subsidizing who won the case must agree for a report 377 9780415418768_4_026.qxd 26/11/2008 02:41PM Page 378

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Table 26.1 Three pillars of WTO agreements

Pillar 1: Trade in goods Agriculture General Agreement on Tariffs and Trade (GATT) Sanitary standards Textiles Technical standards Trade-related investment measures Antidumping measures Customs valuation methods Pre-shipment inspection Rules of origin Import licensing Subsidies and countermeasures Safeguards Pillar 2: Trade in services Movement of natural persons annex General Agreement on Trade in Services (GATS) Air transport annex Financial services annex Shipping annex Telecommunications annex Pillar 3: Intellectual property rights Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) Cross-cutting agreements Dispute settlement understanding Trade policy review mechanism Plurilaterals Agreement on trade in civil aircraft Agreement on government procurement

to be dismissed in the formal adoption (a standing body of nine trade law experts, of meeting of the Dispute Settlement Body whom three are called to hear legal appeals (which is identical to the General Council but on the panel’s determination). acts under a different chairperson). This system makes the WTO’s Dispute Settlement Understanding (DSU) highly effective and Trade and sustainable contributes to its objective of providing “a development central element in providing security and predictability to the multilateral trading On a theoretical level, trade is not automat- system” (Article 3.2 of the DSU). The re- ically good or bad for the environment and quirement to settle disputes formally rests social development (see, e.g. Nordström and with the WTO members, which often de- Scott 1999). Rather, the specific contours of vote significant time to the use of other pre- international trade rules and regimes and juridical techniques such as consultation and modes of implementation dictate the degree other arbitration-like elements of the dispute to which trade advances sustainable devel- settlement mechanism. If these preliminary opment goals. Public international law, the attempts to defuse a trade-related conflict fail umbrella under which international trade to satisfy either party, the DSU process is set law is situated, can and should adopt a in motion and carried out first by a WTO panel principled approach to ensure that it can (composed of three trade experts chosen ad deliver on its global objective of sustainable hoc to hear the case and determine the facts) development. A nuanced understanding of and, second, by the WTO Appellate Body recent developments in world trade law, 378 9780415418768_4_026.qxd 26/11/2008 02:41PM Page 379

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focusing on intersections between economic, sustainable development law agenda mainly social, and environmental fields of law and through specific analysis of developing rules, policy, can enhance the positive (and miti- procedural and substantive innovations, and gate any negative) aspects of this complex rela- emerging issues. World trade law is a multi- tionship. In the context of ongoing trade law layered system; it envelops supranational, debates that encompass the negotiations in the regional, and bilateral components. In many 2003 Cancun Ministerial and the 2005 Hong of the last sort of agreement, innovative Kong Ministerial, there has been anxiety mechanisms are being tested to ensure that the WTO and other international trade mutual supportiveness3 between trade, envir- institutions cannot adequately respond to the onment, and development law. Depending on principal opportunities and threats that were the modalities chosen, intersections of these identified by representatives of over 180 issue areas can create both an overlapping and countries at the 2002 World Summit for crosscutting latticework of rules and stipula- Sustainable Development (WSSD): tions. Not only do the linkages have a legal character, collaboration between IGOs (UNDP, UNEP), NGOs and multilateral Globalization offers opportunities and environmental accords (i.e. UNCBD, challenges for sustainable development. We recognize that globalization and inter- UNFCCC) has resulted in institutional ties dependence are offering new opportunities as well. The core negotiations and controversy to trade, investment and capital flows and surrounding the Doha Development Agenda advances in technology, including infor- along with relevant international economic law mation technology, for the growth of jurisprudence are particularly relevant, and in the world economy, development and the certain areas, closer adherence to principles improvement of living standards around and practices of sustainable development law the world. At the same time, there remain might contribute to longer lasting and better serious challenges, including serious finan- world trade law. cial crises, insecurity, poverty, exclusion and inequality within and among societies.1 Negotiating sustainable While any single international organization or development in the WTO? process would be hard pressed to address this broad range of challenges alone, measures can In the 1970s there emerged significant global certainly be taken to increase the likelihood concern for human rights and the environ- that emerging international trade regimes ment, particularly in developed countries. will support sustainable development. Indeed, This generated considerable controversy for despite the negotiating gridlock that has developing countries (Hunter et al. 2001) characterized the latest round, there are even as the latter planned to focus on the full tentative signs of progress toward this goal.2 exploitation of their natural resources in The next sections of this chapter explore order to promote pressing priorities related emerging issues related to sustainable devel- to economic growth.4 One study, “Limits opment that have gained prominence in the to Growth,” predicted a global disaster if context of the recent “Doha Development international policies were not changed to Agenda” (DDA) of trade negotiations, balance economic development and the taking into account the outcomes of the utilization of non-renewable natural re- 2002 WSSD in Johannesburg, South Africa sources (Meadows et al. 1972). In 1983, (Cordonier Segger and Khalfan 2004: states established the World Commission on 25–43). It aims to discuss the recent devel- Environment and Development (WCED), an opment of a constructive global trade and independent investigatory body composed 379 9780415418768_4_026.qxd 26/11/2008 02:41PM Page 380

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of international policy and scientific experts While preambular statements are not legally in accordance with U.N. General Assembly binding in the same way that operational (UNGA) Resolution Res. 38/161. The out- provisions can be,8 they can play a role in inter- come of the WCED process, the Brundtland pretation of a treaty, particularly in identify- Report, led to UNGA Resolution 42/187, ing the treaty’s object and purpose. Thus, it which resolved that sustainable development is important to understand the intended “should become a central guiding prin- meaning of the Preamble to the WTO ciple of the United Nations, Governments Agreement. In the Preamble, the concept of and private institutions, organizations and sustainable development is mentioned in enterprises.” connection with the optimal use of the Based on this foundation in the U.N. world’s resources. This may be partly be- system, the concept of sustainable develop- cause the Preamble was drafted as an ment became an overarching theme of the expansion of the GATT 1947 Preamble, 1992 United Nations Conference on Envir- which referred conclusively to the need for onment and Development (UNCED) in “developing the full use of the resources of Rio de Janeiro, which attracted over 140 heads the world.” It may also refer to the histor- of state – the largest global summit in history,5 ical origins of the concept itself, in the at that time. One of the conference outcomes, “sustainable yield” management practices of Agenda 21, highlighted that achieving an important agro-forestry industrial sector. enduring social and economic dimensions It is important to note however, that the of development required that international Preamble specifically recognizes the need to trade and environment policies needed to be raise standards of living and income for mutually supportive.6 The outcomes of the people, to protect the environment, and to 1992 UNCED influenced the drafting of do so in a way that is consistent with the needs the WTO preamble: and concerns of developing countries, so that international trade can contribute to Recognizing that their relations in the field these countries’ development needs. of trade and economic endeavour should Indeed, two years later in the 1996 Singa- be conducted with a view to raising stand- pore Ministerial Declaration,9 the Preamble ards of living, ensuring full employment of the WTO Agreement did not inspire new and a large and steadily growing volume negotiations on binding rules. Instead, a of real income and effective demand, and short note appears in Paragraph 16, limited expanding the production of and trade in goods and services, while allowing for only to trade and environment issues, stating: the optimal use of the world’s resources “Full implementation of the WTO Agree- in accordance with the objective of sustainable ments will make an important contribution development, seeking both to protect and to achieving the objectives of sustainable preserve the environment and to enhance development.”10 In this reference, sustainable the means for doing so in a manner con- development objectives are clearly linked to sistent with their respective needs and the implementation of the international trade concerns at different levels of economic regime, rather than simply the optimal use of development. natural resources. It is an expanded recog- Recognizing further that there is need nition of the concept; nonetheless, the text for positive efforts designed to ensure that manages to give the impression that sustain- developing countries, and especially the least developed among them, secure a able development is a natural result of liber- share in the growth in international trade alized trade. In the 1998 Geneva Ministerial commensurate with the needs of their eco- Conference, there was further movement to- nomic development.7 wards establishing sustainable development as (emphasis added) more than a reason for enhanced trade, or a 380 9780415418768_4_026.qxd 26/11/2008 02:41PM Page 381

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way to constrain environmental measures. Body decided in favor of the complainants and The preamble of the Ministerial Declaration asked the U.S. to bring its laws into com- states, at Para. 4: “We shall also continue to pliance with GATT 1994 obligations. improve our efforts towards the objectives of In the case, the U.S. proposed that Art. XX sustained economic growth and sustainable GATT should be interpreted in the light development.”11 of the preamble of the WTO Agreement; As such, in 1998 the WTO and its mem- “[A]n environmental purpose is fundamental ber states formally recognized that sustainable to the application of Article XX, and such a development is not only related to natural purpose cannot be ignored, especially since resources or an inevitable result of the eco- the preamble to the Marrakesh Agreement nomic liberalization process, but is actually Establishing the World Trade Organization one of the goals of the WTO itself. The links (the ‘WTO Agreement’) acknowledges that between this concept and the concept of sus- the rules of trade should be ‘in accordance tained economic growth are also put into with the objective of sustainable development’, relief. By 1998 several countries and regions and should seek to ‘protect and preserve had introduced the goal of sustainable devel- the environment’.”16 In its arguments, the opment into their laws and policies,12 and U.S. omitted the reference to the world’s it is likely that they sought to reflect this resources and the statement concerning the commitment in one of the most important “respective needs and concerns at different international economic law-making pro- levels of economic development.” cesses of the decade. Indeed, this position The Appellate Body decision considers echoed developments in the other important the Preamble, but does not follow the U.S. forum in which WTO rules and regimes are argument: clarified and interpreted: the dispute settlement system. The words of Article XX(g), “exhaustible natural resources,” were actually crafted more than 50 years ago. They must be read “Sustainable developments” by a treaty interpreter in the light of con- in recent WTO disputes? temporary concerns of the community of nations about the protection and conserva- The WTO’s view of the concept of sustain- tion of the environment. While Article XX able development as it currently stands can was not modified in the Uruguay Round, be explained by examining: the U.S.–Shrimp the preamble attached to the WTO Agreement shows that the signatories to that Case,13 the E.U.–Tariff Preferences Case,14 and Agreement were, in 1994, fully aware of most recently the Brazil–Retreaded Tires the importance and legitimacy of environ- 15 Case. mental protection as a goal of national and The U.S.–Shrimp Case concerned a regula- international policy. The preamble of the tion under the 1973 U.S. Endangered Species WTO Agreement – which informs not only Act to protect five different species of endan- the GATT 1994, but also the other covered gered sea turtle. The U.S. requires that U.S. agreements – explicitly acknowledges “the shrimp trawlers use “turtle excluder devices objective of sustainable development.”17 (TEDs)” in their nets. A different law then (emphasis added) prohibited shrimp imports from regions where trawlers were not equipped with TEDs in The enclosed legal note, as part of the the presence of sea turtles. India, Malaysia, Appellate Body’s decision,18 deserves particu- Pakistan, and Thailand complained that the lar attention. The Appellate Body refers to the prohibition was inconsistent with U.S. GATT objective of sustainable development and in obligations. The panel and the Appellate a footnote, expands on its relevance to the case. 381 9780415418768_4_026.qxd 26/11/2008 02:41PM Page 382

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The Appellate Body explained that: “[T]his onment. The most significant, in our view, concept has been generally accepted as inte- was the Decision of Ministers at Marrakesh grating economic and social development to establish a permanent Committee on and environmental protection” (emphasis Trade and Environment (the CTE). In added). This is remarkable for two reasons. their Decision on Trade and Environment, First, the WTO Appellate Body delineated its Ministers expressed their intentions, in part, stance on the nature of sustainable develop- as follows: . . . Considering that there should ment and agrees that it should be framed as not be, nor need be, any policy contradic- a “concept” (as opposed to a principle, pol- tion between upholding and safeguarding icy or rule), in world trade law. Second, a an open, non-discriminatory and equitable reading of the definition demonstrates the multilateral trading system on the one hand, WTO’s recognition of the need to integrate and acting for the protection of the environ- all three elements or “pillars” of sustainable ment, and the promotion of sustainable development – social development, eco- development on the other.”20 In this Deci- nomic development and environmental sion, Ministers took “note” of the Rio protection. The recognition of the social Declaration on Environment and Develop- dimension of the concept, effectively laid the ment,21 Agenda 21,22 and its follow-up in the groundwork for subsequent focus on this GATT, as reflected in the statement of element in the 2002 WSSD. the Council of Representatives to the 48th The Appellate Body continued with their Session in 1992.23 interpretation of the preamble in WTO law: Crucial explanatory comments are again “[W]e note once more that this language found in the footnotes. The Appellate Body demonstrates recognition by WTO negotia- cites specific rules and provisions of the tors that optimal use of the world’s resources Rio Declaration and Agenda 21, which refer should be made in accordance with the to balancing with regard to the needs of objective of sustainable development. As this developing countries. As such, the Appellate preambular language reflects the intentions Body presently interprets the preamble con- of negotiators of the WTO Agreement, we nection to 1992 UNCED and the 1992 Rio believe it must add colour, texture and shad- Conference outcomes. ing to our interpretation of the agreements This reasoning was adopted and applied in annexed to the WTO Agreement, in this case, subsequent WTO Panel and Appellate Body the GATT 1994. We have already observed reports related to the U.S.–Shrimp Case, that Article XX(g) of the GATT 1994 is when Malaysia took recourse to Article 21.5 appropriately read with the perspective of the WTO Dispute Settlement Under- embodied in the above preamble.”19 This standing,24 arguing that the measures taken addition of “colour, texture and shading” by the U.S. did not comply with the recom- seems to amplify the previous language: mendations and rulings of the DSB. In “interpretation based on the context of the particular, the Panel stated that: “In that agreement.” It indicates that the Appellate framework, assessing first the object and pur- Body understands that the concept of sus- pose of the WTO Agreement, we note that tainable development informs members’ the WTO preamble refers to the notion of intentions in all of the annexed agreements. “sustainable development.”25 This means The Appellate Body insisted: “[W]e also that in interpreting the terms of the chapeau, note that since this preambular language we must keep in mind that sustainable devel- was negotiated, certain other developments opment is one of the objectives of the WTO have occurred, which help to elucidate the Agreement.26 On appeal, this interpretation objectives of WTO Members with respect was not overturned by the WTO Appellate to the relationship between trade and the envir- Body.27 382 9780415418768_4_026.qxd 26/11/2008 02:41PM Page 383

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The E.U.–Tariff Preferences Case28 con- sustainable development” could be achieved cerned the scheme of generalized tariff through application of the WTO exceptions, preferences for developing countries. India such as Article XX (g) GATT. complained that special preferences based on However, the Panel in the same case certain drug arrangements adopted by bene- found that the E.U. could not justify its drug ficiary countries were inconsistent with arrangements under Article XX (b) GATT, the most favored nation clause (Article 1.1 because it could not prove that its system was GATT 1994) and could not be justified designed to protect human health in the under the Decision on Differential and More European Union. Rather the panel agreed Favourable Treatment, Reciprocity, and Fuller with India’s argument that increased market Participation of Developing Countries (the access was intended to contribute to sustain- “Enabling Clause”).29 Similar provisions exist able development of the beneficiary countries. for environmental and labor rights, but in the As the fight against illicit drug production end these were not challenged. The panel and exports were deemed to be part of a found that the E.U.’s scheme was indeed broader sustainable development objective inconsistent with Article 1.1 GATT and (as confirmed by several multilateral instru- could not be justified under the enabling ments and the official justification to the clause. This was because developed countries Regulation setting up the E.U. System), were compelled to grant identical tariff these could not be justified as a measure which preferences under GSP schemes to all devel- only sought to benefit the E.U. This decision oping countries without differentiation and demonstrates that both the “environmental” the panel found that it should apply to all and the “development” aspects (including developing countries. The Appellate Body health) are part of the concept of sustainable reversed these last two findings but concluded development that the WTO dispute settlement that the drug criteria due to a closed list of body recognizes as a WTO objective. beneficiary countries and unclear criteria for The most recent decision in Brazil– the selection of these countries were not Retreaded Tires is unique in that it was the covered by the exception. first decision where a developing country The E.U. argued that because the Enabling invoked Art. XX GATT against a challenge Clause was designed to fulfill the objectives by an industrialized country, in this case the of the WTO, it should not be interpreted European Union.31 Brazil banned the import as an exception to Article 1.1 GATT but of retreated tires arguing that the large quan- rather as an incentive for developed countries tities of retreaded tires imported from the to confer preferences on their less developed E.U. created environmental problems includ- counterparts.30 The Appellate Body con- ing dangers associated with mosquitoes that sidered this argument and agreed with the breed in tires and tires catching fire. The E.U. initial observation. Indeed, it overturned one argued that Brazil had not shown that the of the panel’s findings – interpreting non- ban on retreaded tires was necessary to pro- discrimination according to the objectives of tect human health. The panel cited the the GATT and the WTO – and accepting U.S.–Shrimp Appellate Body decision and that the differentiation between developing the overall importance of the goal of sustain- countries according to their needs was able development and interpreted Brazil’s possible. The Appellate Body, citing its reference to environmental protection as U.S.–Shrimp decision, found that the object- meaning the protection of human, animal or ives of the WTO could be fulfilled through plant life, or health (Art. XX (b) GATT). “General Exceptions.” They noted in parti- The E.U. as one of the main exporters of cular that “the optimal use of the world’s used tires (they are very hard to sell in resources in accordance with the objective of Europe) requested formal consultations in June 383 9780415418768_4_026.qxd 27/11/2008 11:37 AM Page 384

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2005.32 Shortly after the E.U. launched should also be considered important.”36 formal consultation Brazil raised the issue and Interesting here is again the footnote which justified its actions in the Committee on Trade makes first reference to other WTO disputes and Environment: “Moreover, in order to and then to international documents related achieve the cited objectives, and in harmony to sustainable development, even with spe- with the widely accepted principle of sustain- cific relevance for the waste problem at hand, able development – included in the preamble and then finally refers to the citation of the of the WTO Agreement – Brazil banned document by the opposing party, here the imports of used and retreaded tires”33 E.U. This use of the preamble is arguably (emphasis added). This submission can be further reaching than in other decisions and considered an interesting choice of words, it suggests that the Doha negotiations might because previously only developed countries have influenced the importance that the had sought to invoke a legally binding prin- panel attaches to the objective of sustainable ciple of sustainable development. development. Among other legal issues the Brazil– The Appellate Body upheld the panel’s con- Retreaded Tires case centered on a discussion clusion on the applicability of Art. XX (b) of Art. XX GATT, particularly the exceptions GATT. It added: that Brazil allowed for retreaded tires from Mercosur countries and due to court orders We recognize that certain complex public to the benefit of retreading companies. health or environmental problems may be tackled only with a comprehensive policy The panel found that the measure generally comprising a multiplicity of interacting fulfilled Art. XX (b) GATT to protect measures. In the short-term, it may prove animal, plant and human life, or health but difficult to isolate the contribution to pub- constituted a disguised restriction on inter- lic health or environmental objectives of one national trade and was thus not justified specific measure from those attributable under Art. XX GATT. to the other measures that are part of the It further emphasized the importance of the same comprehensive policy. Moreover, Preamble to the WTO Agreement: “The the results obtained from certain actions – objective pursued is also the protection of for instance, measures adopted in order animal and plant life and health. The risks at to attenuate global warming and climate issue relate to: (i) the exposure of animals and change, or certain preventive actions to reduce the incidence of diseases that may plants to toxic emissions caused by tire fires; manifest themselves only after a certain and (ii) the transmission of a mosquito-borne period of time – can only be evaluated with disease (dengue) to animals. The Panel the benefit of time. In order to justify an acknowledges that the preservation of animal import ban under Article XX(b), a panel and plant life and health, which constitutes must be satisfied that it brings about a an essential part of the protection of the envir- material contribution to the achievement onment, is an important value, recognized in of its objective. Such a demonstration can the WTO Agreement. The Panel recalls that of course be made by resorting to evid- in U.S.–Shrimp,34 the Appellate Body under- ence or data, pertaining to the past or the lined that the preamble of the Marrakesh present, that establish that the import ban Agreement establishing the WTO showed that at issue makes a material contribution to the protection of public health or environ- the signatories to that Agreement were, in mental objectives pursued. This is not, 1994, fully aware of the importance and however, the only type of demonstration legitimacy of environmental protection as a that could establish such a contribution. 35 goal of national and international policy. Thus, a panel might conclude that an Therefore, the Panel finds that the objective import ban is necessary on the basis of a of protection of animal and plant life and health demonstration that the import ban at issue 384 9780415418768_4_026.qxd 26/11/2008 02:41PM Page 385

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is apt to produce a material contribution that promote sustainability and public parti- to the achievement of its objective. This cipation. These tools come in various forms, demonstration could consist of quantitative ranging in scope from environmental impact projections in the future, or qualitative assessments and human rights impact assess- reasoning based on a set of hypotheses ments to the broadest tool, sustainability that are tested and supported by sufficient impact assessments. Although it remains evidence.37 unusual for any national development decision or regional or bilateral trade agreement While Brazil was not ultimately successful, in to require some form of impact assessment, this case the Appellate Body underscored the the European Union, the United States and long-term sustainability of a measure adopted Canada have all adopted the tool to some by the parties and vis à vis the E.U.–Asbestos degree to be used either before or after the decision further lowered the burden of proof decision or agreement has been concluded. in environmental cases. Others such as New Zealand and Japan are The reasoning of the WTO dispute settle- considering similar steps. ment body in these cases, taken together, At the international level, certain environ- demonstrates that the objective of sustainable mental treaties contain obligations to perform development has become an integral part of environmental impact assessments in situations the world trading system. Legal arguments where one country’s activity may flow across encompassing an integrated developmental and a border or when areas of common concern, environmental approach have been made by such as the high seas39 or the Antarctic,40 are the parties and accepted by the relevant dis- involved. The application of such instruments pute settlement organs. On the one hand, it to trade agreements is relatively new, but is clear that the panels and the Appellate Body developing rapidly, and in some instances the will not accept sustainable development as a assessments include a regulatory dimension. trump card. It cannot simply be invoked in In Canada, the Framework for Conduct- order to justify non-compliance with estab- ing Environmental Assessments of Trade lished WTO disciplines. A solid legal under- Negotiations41 has been used since 2001 to standing of the objective and its underlying conduct environmental assessments of new principles, as well as the appropriate applica- bilateral and regional trade negotiations, and tion of specific facts of each case embedded since 2005 this has also been applied to invest- in a reasoned legal argument is required to ment agreements. The assessments seek to assist make a successful sustainable development Canadian negotiators in integrating environ- argument in world trade law. mental considerations into the negotiating process (as envisaged by the Doha Develop- ment Agenda), and to address public concerns. New instruments in trade law for The framework includes provisions for sustainable development actively seeking public input into assessments from non-governmental organizations, busi- A highly practical example of the integration nesses, indigenous peoples and the general of economic, social, and environmental con- public. Similarly, the Office of the U.S. Trade cerns is found in the increasing use of impact Representative has conducted environmen- assessment tools in the international arena.38 tal reviews of all bilateral and regional trade Impact assessments operate as a formalized con- agreements signed by the United States since sideration of the wider effects of particular 1999, in which regulatory impacts, public policies (usually trade policies or development advice and potential impacts in the territory projects), and aim to ensure that trade and of the proposed new trading partner are development decisions result from processes taken seriously and addressed.42 Developing 385 9780415418768_4_026.qxd 26/11/2008 02:41PM Page 386

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countries have, in some cases, also found European Union, which then receives a such assessments useful for economic policy response paper from the European Commis- making. For instance, as discussed by the sion. All results are made public. International Institute for Sustainable Devel- opment, Senegal recently found that stocks of certain species of fish with high market Sustainable development in the values were being seriously depleted through Doha development agenda the use of trade impact assessment.43 Sustainability impact assessments are more During the Seattle negotiations several coun- complex, innovative studies which take eco- tries made sustainable development related nomic, environmental and social impacts submissions and the public spotlight focused into account to provide a complete picture on the trade and environment and the trade of the expected effects of a trade policy or pro- and development debates. The successful ject. They include target-related indicators, conclusion of the Doha Ministerial Declara- which attempt to measure sustainability tion resonated in some ways with these sub- against a set of defined goals, and process- missions and discussions. Ministers agreed in related indicators, which are based on the prin- Para. 6 of the Ministerial Declaration: ciple that the process itself by which policies and decisions are adopted plays a substantial role in achieving sustainable development We strongly reaffirm our commitment to the objective of sustainable development, as goals. Indicators of sustainability used in the stated in the Preamble to the Marrakesh assessments fall into three categories: Agreement. We are convinced that the aims of upholding and safeguarding an open economic indicators, including average and non-discriminatory multilateral trading real income, fixed capital formation and system, and acting for the protection of the environment and the promotion of employment rates sustainable development can and must be social indicators, including poverty mutually supportive. We take note of rates, health and education levels and the efforts by Members to conduct national equity environmental assessments of trade policies environmental indicators, including air on a voluntary basis. We recognize that and water quality indicators, biological under WTO rules, no country should diversity and natural resources.44 be prevented from taking measures for the protection of human, animal or plant life or health, or of the environment at the Sustainability impact assessments are mostly levels it considers appropriate, subject to the in use within the European Union, which requirement that they are not applied in a developed a framework for analysis in 1999. manner which would constitute a means This framework has since been applied to the of arbitrary or unjustifiable discrimination WTO Doha Round negotiations and EU between countries where the same con- bilateral and regional trade agreements with ditions prevail, or a disguised restriction Chile, Mercosur, the African–Caribbean– on international trade, and are otherwise Pacific nations and the Gulf Cooperation in accordance with the provisions of the WTO Agreements. We welcome the Council nations. EU sustainability impact WTO’s continued cooperation with UNEP assessments place significant emphasis on and other inter-governmental environ- consultation both within EU member states mental organizations. We encourage efforts and in the third country trade partners. The to promote cooperation between the assessments themselves are conducted by WTO and relevant international environ- independent experts commissioned by the mental and developmental organizations, 386 9780415418768_4_026.qxd 26/11/2008 02:41PM Page 387

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especially in the lead-up to the World ing sustainable development appropriately Summit on Sustainable Development to be reflected.”48 The initial proposal by Canada, held in Johannesburg, South Africa, in that the Committee on Trade and Environ- 45 September 2002. ment should debate the environmental aspects of the expected Seattle negotiations, As is clear from this excerpt, the DDA was was broadened to include the Committee intended to be informed by sustainable on Trade and Development.49 It is unclear development objectives. Ministers recogn- whether these two committees will be ized sustainable development as a fundamental able to fulfill their mandates to identify and goal of the WTO, and placed it into a debate environmental and development strengthened context, referring to practical aspects of the negotiations in addition to measures such as the need for cooperation helping to ensure that sustainable development with other international environment and can be appropriately reflected in the trade development organizations in the lead-up to the negotiations. WSSD. From the macro perspective, the Doha The WTO clearly considers itself bound Declaration provides an indication that sus- by its commitment to sustainable development tainable development objectives are starting as an objective, and arguably, may also be to be understood as involving both environ- influenced by sustainable development in mental and social development actors and its role as an “interstitial norm” in public organizations. There are indications that international law. As such, the outcomes of states may be prepared to move away from trade negotiations may present opportun- the traditional “trade-only” or “trade and envir- ities to modify certain trade rules in order to onment only” approach. While expectations ensure that they can better support sustain- for a sustainable development infused WTO able development. Many caveats remain should be hedged because of recalcitrant and these have become doubly apparent in powerful members, coherence between the subsequent Doha Round negotiations in preamble and the Appellate Body’s balanced Cancun and Hong Kong. At first there were and integrated definition is legally com- high initial expectations as it was widely pelling.46 References to this objective in the understood that the agenda underpinning Doha Ministerial Declaration clearly recog- the DDA was intended to place develop- nize environmental protection and social ment priorities at the very heart of the new development aspects to be part of the man- negotiations. However, in spite of recent date of a mainly economic organization. Appellate Body and WTO statements on the Indeed, the ministers went further, and importance of delivering on the development sought to operationalize the sustainable promises of world trade, and of ensuring development goal for the WTO itself. At para- that trade law contributes to the objective graph 51, a mechanism was created to ensure of sustainable development, the process has that this objective would be translated into been inconsistent and repeatedly obstructed. concrete action.47 In the organization and man- While developing countries have made great agement of the work program section of the efforts to ensure that their voices and inter- Declaration, WTO member governments ests are heard and taken into account, agreed that: “[T]he Committee on Trade there has been little tangible advancement and Development and the Committee on on important development issues. Similarly, Trade and Environment shall, within their progress has been scant in constructively respective mandates, each act as a forum to addressing overlaps between trade and human identify and debate developmental and en- rights questions or trade and environment vironmental aspects of the negotiations, in questions, in a way that seamlessly integrates order to help achieve the objective of hav- development interests. 387 9780415418768_4_026.qxd 26/11/2008 02:41PM Page 388

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Conclusion UNTS 4, 33 ILM 1144, Preamble; which recognizes that among WTO members: The norm development is not concluded – “Relations in the field of trade and economic the content of the concept of sustainable devel- endeavour should be conducted with a view to raising standards of living, ensuring full opment itself is still contested. Furthermore, employment and a large and steadily growing while members of the WTO may now be volume of real income and effective demand, bound by a particular reading of sustainable and expanding the production of and trade development objectives at the global level, this in goods and services, while allowing for the may not mean they feel obliged to develop optimal use of the world’s resources in accordance with the objective of sustainable devel- “sustainable” trade laws or policies either opment, seeking both to protect and preserve internally, or in their further bilateral and the environment and to enhance the means regional trade treaties with other countries for doing so in a manner consistent with their (see Gehring and Cordonier Segger 2005). respective needs and concerns at different levels According to the letter of international trade of economic development . . . Recognizing further that there is need for positive efforts law, all countries are free to choose their own designed to ensure that developing countries, economic system and trade policies. How- and especially the least developed among ever, where “discrimination” is alleged, them, secure a share in the growth in inter- clashes with principles of the WTO will ulti- national trade commensurate with the needs mately result in binding dispute settlement of their economic development.” See also WTO, United States: Import Prohibition of procedures for its members. To ensure that Certain Shrimp and Shrimp Products Sector– international trade law can deliver on sus- Report of the Appellate Body (September 20, tainable development in the current context, 1999) WT/DS58/AB/R [129] n 107; where a constructive, integrated approach is needed the WTO Appellate Body observes that the to address overlaps between social develop- Preamble to the WTO Agreement specifically refers to “the objective of sustainable devel- ment, economic development and environ- opment” and characterizes it as a concept that mental protection. This approach will be has “been generally accepted as integrating important to ensure more coherent – and last- economic and social development and envir- ing – world trade law. onmental protection.” 3 Integration as part of the concept of sustainable development has mainly been proposed [Author note: This chapter shares thoughts in trade policy discussions by the demand to with the Introduction of Sustainable Develop- “[e]nsure that environment and trade policies ment in World Trade Law edited by Markus are mutually supportive, with a view to Gehring, and Marie-Claire Cordonier achieving sustainable development.” “Agenda 21 (Annex 2)” in Report of the U.N. Segger (2005) and with World Trade Law in Conference on Environment and Develop- Practice by Markus Gehring, Jarrod Hepburn, ment Vol. I ( June 13, 1992) U.N. Doc and Marie-Claire Cordonier Segger (2007).] A/CONF.151/26 (Vol. I); 31 ILM 874 [2.10]. 4 See “Permanent Sovereignty over Natural Resources” UNGA Res 1803 (XVII) Notes (December 14, 1962) U.N. Doc A/Res/1803 (XVII). 1 “Johannesburg Declaration on Sustainable 5 Among the outcomes of the UNCED Development and Johannesburg Plan of were three international treaties (on climate Implementation”, in Report of the World change, biological diversity, and, a little later, Summit on Sustainable Development (Septem- desertification and drought) which recognized ber 4, 2002) U.N. Doc A/CONF.199/L20 both environmental and sustainable develop- [45]. ment objectives, as well as the non-binding 2 See Marrakesh Agreement Establishing the 1992 Rio Declaration and Agenda 21, which World Trade Organization (signed April 15, were adopted by governments. See “Rio 1994, entered into force January 1, 1995) 1867 Declaration on Environment and Develop-

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ment (Annex 2)”, Report of the U.N. 11 Geneva Ministerial Declaration (20 May Conference on Environment and Develop- 1998) WT/MIN(98)/DEC/1. Available at ment Vol. I ( June 13, 1992) U.N. Doc http://docsonline.wto.org. A/CONF.151/26 (Vol. I), (1992) 31 ILM 874; 12 For example, large trading countries such as Agenda 21 (n 3). Germany amended their Constitutions to 6 Agenda 21 (n 6) [2.19] stated that: “Envir- include the goal of sustainable development, onment and trade policies should be mutually see Grundgesetz für die Bundesrepublik supportive. An open, multilateral trading Deutschland (German Constitution) art 20; system makes possible a more efficient alloca- and trading regions such as the European tion and use of resources and thereby contributes Union had accepted sustainable development to an increase in production and incomes and as an objective of their integration, see Treaty to lessening demands on the environment. of Amsterdam Amending the Treaty on It thus provides additional resources needed European Union (signed October 2, 1997, for economic growth and development and entered into force May 1, 1999) [1997] OJ improved environmental protection. A sound C 340/1, art 2. Available at http://www. environment, on the other hand, provides europarl.europa.eu/topics/treaty/pdf/amst- the ecological and other resources needed en.pdf; see also the outcomes of the Summit to sustain growth and underpin a continuing of the Americas on Sustainable Development, expansion of trade. An open, multilateral Declaration of Santa Cruz de la Sierra trading system, supported by the adoption of (adopted December 7, 1996). Available at http:// sound environmental policies, would have a www.summit-americas.org/Boliviadec.htm; as positive impact on the environment and con- discussed generally in Cordonier Segger and tribute to sustainable development.” Leichner Reynal 2005. 7 Marrakesh Agreement (n 2) Preamble. 13 See WTO, United States: Import Prohibition of 8 In general international law the preamble is Certain Shrimp and Shrimp Products Sector–Panel part of the context in which the international Report (15 May 1998) WT/DS58/R; see also treaty has to be interpreted; see Vienna Con- United States: Shrimp–Appellate Body Report vention on the Law of Treaties (singed May (n 2). 23, 1969, entered into force January 27, 14 WTO, European Communities: Conditions for 1980) 1155 UNTS 331, 8 ILM 679, art 31; the Granting of Tariff Preferences to Developing “General rule of interpretation at 1. A treaty Countries–Appellate Body Report (20 April shall be interpreted in good faith in accordance 2004) WT/DS246/AB/R. with the ordinary meaning to be given to 15 WTO, Brazil: Measures affecting Imports of the terms of the treaty in their context and in Retreaded Tires–Panel Report ( June 12, 2007) the light of its object and purpose. 2. The con- WT/DS332/R. text for the purpose of the interpretation of a 16 United States: Shrimp–Appellate Body Report treaty shall comprise, in addition to the text, (n 2) [12]. including its preamble and annexes.” The 17 Ibid. n 107; in the Appellate Body Report, preamble can contain important information reads: “This concept has been generally about the object and purpose of the treaty. accepted as integrating economic and social 9 Please note that the ministerial declarations are development and environmental protection. generally political statements and not legally See, e.g. Handl 1995: 35. binding on members. An exception is the 18 United States: Shrimp–Appellate Body Report decision to engage in trade negotiations. If (n 2) [123]. negotiations are commissioned the ministerial 19 United States: Shrimp–Appellate Body Report declaration acquires quasi legal status, because (n 2) [153]. each formulation constitutes a negotiation 20 Ministerial Decision on Trade and Envir- mandate and sets the limitations of these onment (April 15, 1994) LT/UR/D-5/8, 33 negotiations. Nonetheless, ministerial declara- ILM 1267, preamble http://docsonline.wto.org. tions are adopted unanimously and reflect the 21 We note that Principle 3 of the Rio Declara- political opinion of the overall development tion on Environment and Development of the organization. states: “The right to development must be 10 Singapore Ministerial Declaration (December fulfilled so as to equitably meet develop- 18, 1996) WT/MIN(96)/DEC, 36 ILM 218. mental and environmental needs of present Available at http://www.wto.org/english/ and future generations.” Principle 4 of the Rio thewto_e/minist_e/min96_e/singapore_dec- Declaration on Environment and Develop- laration96_e.pdf. ment states that: “In order to achieve sustain-

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able development, environmental protection 30 Ibid. [93]; interestingly a similar argument was shall constitute an integral part of the develop- made by one dissenting panel member in the ment process and cannot be considered in panel case. isolation from it.” 31 WTO, Brazil: Measures affecting Imports of 22 Agenda 21 is replete with references to the Retreaded Tires–Panel Report ( June 12, 2007) shared view that economic development and WT/DS332/R. the preservation and protection should be 32 On June 20, 2005, the European Commun- mutually supportive. For example, paragraph ities requested consultations with Brazil under 2.3(b) of Agenda 21 states: “The international Article XXII:1 of the General Agreement on economy should provide a supportive inter- Tariffs and Trade 1994 (the “GATT 1994”) national climate for achieving environment and and Article 4 of the Understanding on Rules development goals by . . . [m]aking trade and and Procedures Governing the Settlement environment mutually supportive.” Similarly, of Disputes (the “DSU”) regarding Brazil’s paragraph 2.9(d) states that an “objective” of imposition of measures that adversely affect governments should be: “To promote and exports of retreated tires from the European support policies, domestic and international, Communities to the Brazilian market. that make economic growth and environmental 33 Committee on Trade and Environment, protection mutually supportive.” Trade in Used and Retreaded Tires– Submission by 23 Ministerial Decision on Trade and Environ- Brazil ( July 12, 2005) WT/CTE/W/241; see ment (n 20). also Committee on Trade and Environment, 24 WTO, United States: Import Prohibition of Report of the Meeting held on 6 July 2005 Certain Shrimp and Shrimp Products Sector– (September 2, 2005) WT/CTE/M/40 [82]. Recourse by Malaysia to Article 21.5 of the DSU 34 United States: Shrimp–Appellate Body Report (October 13, 2000) WT/DS58/17. (n 2) [129]. 25 In the Panel Report, this citation reads: “See 35 The preamble of the Marrakech Agreement the final texts of the agreements negotiated by establishing the WTO reads in its relevant Governments at the United Nation Confer- part: “Recognizing that their relations in the ence on Environment and Development field of trade and economic endeavor should (UNCED), Rio de Janeiro, Brazil, June 3–14, be conducted with a view to raising standards 1992, specifically the Rio Declaration on of living, ensuring full employment and a large Environment and Development (hereafter and steadily growing volume of real income the “Rio Declaration”) and Agenda 21 at and effective demand, and expanding the pro- www.unep.org; the concept is elaborated in duction of and trade in goods and services, while detailed action plans in Agenda 21 so as to put allowing for the optimal use of the world’s resources in place development that is sustainable – i.e. in accordance with the objective of sustainable that “meets the needs of the present genera- development, seeking both to protect and preserve the tion without compromising the ability of environment and to enhance the means for future generations to meet their own needs”; doing so in a manner consistent with their see World Commission on Environment and respective needs and concerns at different Development (n 13). levels of economic development” (emphasis 26 WTO, United States: Import Prohibition of Cer- added). Moreover, in the 1994 Ministerial tain Shrimp and Shrimp Products Sector, Recourse Decision on Trade and Environment, Ministers to Article 21.5 by Malaysia–Panel Report ( June took note, inter alia, of the Rio Declaration on 15, 2001) WT/DS58/RW. Environment and Development and Agenda 27 WTO, United States: Import Prohibition of Certain 21. Of particular relevance is paragraph 4.19 Shrimp and Shrimp Products Sector, Recourse to of Agenda 21, which states, in part: “Society Article 21.5 by Malaysia–Report of the Appellate needs to develop effective ways of dealing Body (October 22, 2001) WT/DS58/AB/ with the problem of disposing of mounting RW. levels of waste products and materials. 28 WTO, European Communities: conditions for the Governments, together with industry, house- Granting of Tariff Preferences to Developing holds and the public, should make a concerted Countries – Appellate Body Report (20 April effort to reduce the generation of wastes and 2004) WT/DS246/AB/R. waste products.” The European Commun- 29 Differential and More Favourable Treat- ities referred to the Rio Declaration and ment Reciprocity and Fuller Participation of Agenda 21 in its response to question 37 by Developing Countries (November 28, 1979) the Panel and in paragraph 138 of its first L/4903, BISD 26S/203. written submission.

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36 Brazil: Tires–Panel Report (n 31) [7.112]. www.ustr.gov/Trade_Sectors/Environment/ 37 WTO, Brazil: Measures affecting Imports of Environmental_Reviews/Section_Index.html. Retreaded Tires–Report of the Appellate Body 43 International Institute for Sustainable Develo- (December 3, 2007) WT/DS332/AB/R [151]. pment, Environment and Trade: A Handbook (2nd 38 For details, see Gehring 2007; Gehring et al. edn, UNEP, Geneva 2005): 112. Available at 2007: 131. http://www.iisd.org/pdf/2005/envirotrade_ 39 United Nations Convention on the Law of the handbook_2005.pdf. Sea (signed December 10, 1982, entry into force 44 European Commission, Sustainability Impact November 16, 1994) 1833 UNTS 396, 21 ILM Assessment. Available at http://ec.europa.eu/ 1245. comm/trade/issues/global/sia/index_en.htm. 40 Protocol on Environmental Protection to 45 Doha Ministerial Declaration (November 14, the Antarctic Treaty (opened for signature 2001) WT/MIN(01)/DEC/1. http://www. October 4, 1991, entry into force January 14, wto.org/english/thewto_e/minist_e/min96_e/ 1998) 30 ILM 1461. singapore_declaration96_e.pdf. 41 Department of Foreign Affairs and International 46 See Seattle Proposals (all made after the Trade Canada, “Framework for Conducting Appellate Body’s U.S.–Shrimp decision discussed Environmental Assessments of Trade Nego- earlier). tiations” http://www.international.gc.ca/ 47 Doha Ministerial Declaration (n 45) [51]; trade-agreements-accords-commerciaux/ds/ this section of the Ministerial Declaration is Environment.aspx. binding for the negotiations. 42 Ofﬁce of the United States Trade Repres- 48 Ibid. entative, “Environmental Reviews in FTAs” 49 Ibid. 3.

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27 Looking ahead: international law’s main challenges

Andrea Bianchi

This concluding chapter identifies several major national relations (Goldsmith and Posner challenges – or opportunities – faced by interna- 2005). In contrast, other members of the same tional law in the near future. These are the fight profession have recently celebrated the entry for inclusion as subjects with international legal per- of international law into its “post-ontological sonality by non-state actors, the need for suitable era” (Franck 1995: 6). Such shifting percep- processes of lawmaking, the shifting boundaries tions should not divert attention from the of normativity, and associated questions about significant changes undergone by international whether interstitial norms or soft law fully qualify law of late. It would be simplistic, and even as legal norms, the continuing problems raised by erroneous, to presuppose that such changes the absence in international law of the same kinds are primarily due to the contingencies of inter- of enforcement mechanisms as may be found in national politics. domestic law, developments in the area of account- In fact, it is rather the structure and the ability mechanisms, including those applying to indi- changing demands of the societal body that viduals and transnational corporations, whether the have dramatically affected our understanding increasing complexity, specialization, and judicial of international law and how it functions. The fragmentation of international law place the system very idea of the international community has under strain or may be seen as a sign of maturity, changed. The transformation of the inter- and, finally, the similar questions raised by the frag- national community “in potency” into the mentation of theoretical discourse in international international community “in actuality” (de law. Visscher 1970: 123), could well be an accurate representation of the many achievements of international law in the 1990s: the decade of Introduction the materialization of international criminal justice and the world trading system, among Short of a crystal ball, officially approved by other things. The proliferation of actors on Hogwarts,1 nobody is really in a position to the scene is also worth noting, together with credibly predict the future of international law. the difficulty of accommodating them into a Speculations are all the more risky at a time still predominantly state-centered system. of increasing perplexity about the utility of If to predict what lies ahead for interna- the discipline for the understanding of inter- tional law pertains to the art of clairvoyance, 392 9780415418768_4_027.qxd 26/11/2008 02:41PM Page 393

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to highlight its main future challenges appears or to conclude treaties, which were all typ- a more feasible, if less reassuring task. The ical states’ prerogatives (Cheng 1991: 38). problem with challenges is that one does not Anomalies could always be accommodated know in advance whether they will be met and their marginal character posed no sys- and, if so, how. And yet, to investigate such temic threat (Arangio-Ruiz 1996). Over challenges and societal changes is also a way time, legal personality reached out to inter- of directing the development of interna- national organizations, in many ways a direct tional law. If law and its underlying societal emanation of states, and the International structure are closely intertwined, the way in Court of Justice Advisory Opinion on the which we think of the law, and what the law Reparation for Injuries case paved the way is, are indissolubly linked as the law has no for relativizing the doctrine of subjects and tangible existence, distinct from our way of adjusting it to the new demands of the inter- conceiving of it. This is why by highlighting national community.2 the challenges awaiting international law, Although mainstream scholarship still tends one inevitably unveils his own view of what to reason in terms of “subjects” and inter- international law is as well as his sense (or wish) national legal personality, the term “actor” bor- of where international law is heading. rowed from the language of political science has made its way into the common parlance of international lawyers. From the stand- The fight for inclusion: non-state point of theory, however, non-state actors have actors’ claims drawn little attention. The reluctance of international lawyers to provide a theoretical The traditional positivistic approach to inter- systematization to the doctrine of actors is national law provided a neat theory of the nonetheless understandable. In fact, this is subjects of international law, whereby a an issue that lies at the interface of theory and limited number of entities, primarily states, practice, law and policy and the stance one would be the bearers of international rights takes in relation to it is likely to have reper- and responsibilities. The concept of interna- cussions on such other systemic issues as law tional legal personality was used to describe making and law enforcement. To use Jan those entities that “the legal system has cast Klabbers’ words “subjects doctrine forms the to appear on the stage of the law” (Cheng clearing house between sources and sub- 1991: 24). As the etymology of the words sug- stance: it is through subjects doctrine that gests, only those personae that played a direct the international allocation of values takes role in the legal system could appear on stage, place, and as any political scientist knows, the regardless of the other entities which might authoritative allocation of values is one of participate in the production of the play. The the main political functions” (Klabbers 2003: latter would be of interest to sociologists 369). and political scientists but were irrelevant to Conceptual thinking about non-state legal analysis. The question “Who is the sub- actors poses numerous challenges. As regards ject?” found an obvious answer in a strongly terminology, one may wonder whether the state-centered system, where states had the term has merely a descriptive connotation, monopoly of law-making, law adjudication which is used to encompass those actors and law enforcement processes (Weil 1992: that are not states, or, whether, it refers, in 122). In a somewhat tautological fashion, a prescriptive fashion, to a particular status, “indices” of the legal personality of entities recognized by the international legal order, at international law were traced to the cap- to which speciﬁc legal connotations are acity of certain entities to perform such func- attached. In fact, despite the increasing use tions as to exchange diplomatic missions of “non-state actors” as a term of art, no 393 9780415418768_4_027.qxd 26/11/2008 02:41PM Page 394

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systematization seems to have been made in equality and the doctrine of subjects are the literature which could satisfactorily account constitutive fictions that require “acceptance for, from the theoretical perspective, the role if the whole edifice of the international legal played by non-state actors in contemporary system is not to be called into question” international law. (Dupuy 2003a: 179). The point is well Henceforth, the doctrine of subjects has taken, insofar as it highlights that the way in resisted any attempt at revision and remains which one conceives of international law as a cornerstone of positivistic legal analysis. inevitably reflects on the way in which such Most textbooks and treaties still contain a sec- fundamental questions as “who makes the law” tion on the subjects of international law and and “who is the subject of the law” are the unity of the system is preserved by deny- answered. In fact, to conceive of international ing the existence of new scientific paradigms law as a body of rules in a community of states and schools of thought that, in the meantime, or as a legal process in a community where have done away with traditional theory and “there are a variety of participants, making have proposed frameworks of analysis based claims across state lines, with the object of on entirely different tenets. The merit of maximizing various values” (Higgins 1994: 50) sociological approaches to international law is not the same thing, and the use of a is to have highlighted that the social fabric and different terminology hardly hides a funda- structure of the international legal system, mental difference in thinking of the inter- on the one hand, and its subjects/actors, on national legal system. The state of disarray in the other, are “mutually constitutive”. Con- which the doctrine of subjects/actors seems structivist theories, elaborated in the field to be is further attested by the attempt to pull of international relations, have shown that together such different visions with a view to the interaction among different actors con- reconciling them. stitutes the structure of the system, and that Many commentators have highlighted the the latter shapes the identity, interests and unsuitability of the doctrine of subjects in expectations of the actors in a mutual process providing an accurate representation of the of influence (Arend 1998: 129; Mertus current realities. Emphasis has been placed on 1999–2000). the changing societal structures of the inter- When and how the terminology of national community and the need to develop actors and/or participants made its way into new conceptual tools that adequately account international law is subject to controversy. for them. The inadequacy of the doctrine Certainly, Rosalyn Higgins’ critique of the of subjects has been underscored by numer- old theory of subjects, and its advocacy of ous authors. Key to any such critique is the the notion of participants in international acknowledgment that the changing social decision-making processes has greatly con- structure of the international community tributed to giving legitimacy to this new ter- must be adequately accounted for, and that minology. The argument that by construing new conceptual tools are required. The the reality of international law in terms of “sub- solipsistic vision of state sovereignty as the jects” and “objects,” “[w]e have erected an quintessential element of the international intellectual prison of our own choosing and community of states must give way to a then declared it to be an unalterable constraint” contemporary assessment of the social forces (Higgins 1994: 49) carries much force, that structure a wider community whose particularly because the distinction does not members have “values, identities and roles seem to serve any particular functional pur- distinct from the geographic limitations of pose. This, however, is unlikely to convince states” (McCorquodale 2006: 149). “The the positivist who would rebut, not with- logic of the liberal representative state and out reason, that the doctrine of sovereign consent-based notions of international law” 394 9780415418768_4_027.qxd 26/11/2008 02:41PM Page 395

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(Cutler 2001: 150) do not allow for a recon- rowed to provide a temporary accom- sideration of the state as the only subject of modation. That the participants need the international legal system, thus causing “legitimacy” and must be made “accountable” a “disjunction between theory and practice is an expression which would mean little to which is conducive to a legitimacy crisis” many positivist lawyers and yet seems to (Cutler 2001: 147 ff.). As is well known, have become part and parcel of the fabric of despite Franck’s effort to introduce legitimacy international law. into the vocabulary of international law International law has proved many times (Franck 1990), the term makes positivist to be flexible enough to adjust to change. lawyers diffident by their incapacity to attach In many ways, it is and will most likely to it sufficiently precise legal connotations. remain a “pragmatic project,” which tends In this context, however, its meaning is to accommodate societal and normative self-evident. If the participants in interna- developments in a pragmatic fashion. It may tional legal processes fail to see their social prac- very well be that the attempt to distinguish tices reflected in the law, the latter’s claim between subjects and actors hardly meets any to authority will be undermined (Cutler functional purpose. It would be simplistic, 2001: 147). however, to think that terminology is Whether the solution lies in relativizing neutral and that its underlying conceptual the subjects, or rather, in subjectivizing categories may even handedly serve different the actors, remains open to doubt (Bianchi purposes. In fact, as Alston rightly noted, the 2009). The constant swing of the pendulum “negative and euphemistic term” of non-state from the normative to the descriptive mes- actors may not “stem from any language merizes the observer and makes him wonder inadequacies” but may have been adopted “to whether the observed reality can provide reinforce the assumption that the state is not the answers he is looking for. In fact, the only the central actor, but also the indispens- disjunction between theory and practice and able and pivotal one around which all other the strain between the different ways of look- entities revolve” (Alston 2005: 3). The ing at the same reality is a symptom of a more doctrinal debate on subjects/actors fails to general disease affecting international law. conceal the power struggle for recognition as The “politics of forms” (Schlag 1991: 1742) a legitimate participant in international law has long exhausted its ordering function and processes. Inevitably, time will tell us who has has been supplanted by a panoply of narra- won the battle for inclusion. tives that tell different stories about the same reality. If one acknowledges that international law has changed dramatically in the past few Law making and the need for decades, the need to reformulate some of its general law foundational tenets seems an obvious solution. The contemporary international commun- The most compelling challenge in the area ity, which provides the terrain on which the of law making seems to be the lack of suit- game of international law is played, is no longer able mechanisms of general law making. On perceived as consisting solely of states and, the one hand, when a prompt normative inevitably, the inclusion/exclusion mode response is required there does not appear to with which the traditional theory of subjects be an adequate general law-making mech- has been set and used in a restrictive fashion anism (Bianchi 2004: 515–18). Multilateral to preserve the integrity of the system, needs treaty making is a lengthy and cumber- to be reconsidered. An alternative conceptual some procedure. Ultimately, its capacity to framework has not been created and the become general law depends on the number language of other disciplines has been bor- of states that will ratify the relevant treaty. 395 9780415418768_4_027.qxd 26/11/2008 02:41PM Page 396

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In a community of nearly 200 states, the customary law rules come into being ought efficacy of a multilateral treaty appears as a to be inquired afresh, as recent developments daunting task, let alone the lapse of time attest to the increasing difficulty of adhering required to have states duly ratify the treaty to the traditional dualist doctrine of custom, according to their domestic constitutional whereby customary rules should be ascertained arrangements. Along similar lines, customary on the basis of a generality of practice law making – at least as traditionally under- accompanied by opinio juris. In some areas of stood – is incapable of producing rules of international law, the dualist doctrine has been general applicability when prompt action is seriously called into question. As regards required. No matter which particular theory international humanitarian law, for instance, of custom one adheres to, some generality it has been contended by some authors that of practice and opinio juris needs to be estab- the requirement of practice is no longer lished. This is the reason why whenever a indispensable when the “laws of humanity particular situation demands urgent regula- and the dictates of public conscience” widely tion alternative mechanisms are required. The support the existence of a norm (Cassese U.N. Security Council has recently gone 2005: 160 ff., 2000). Such primary reliance well beyond the express powers originally on opinio is not deprived of practical conse- conferred to it by the Charter when it has quences. It has allowed for a certain expansion acted in a quasi-legislative capacity, imposing of international criminal norms, arguably to general obligations on the member states the detriment of the principle of nullum under Chapter VII of the Charter, although crimen. Evidence of this trend can be traced responding to a demand of the societal body to the jurisprudence of the ICTY. It suffices (Bianchi 2006a: 889). Rightly or wrongly, to think of the Galic case to realize that even in terms of legality and conformity with the in the absence of a general practice, the pro- letter of the Charter, there was a widespread hibition of terrorism can be considered a perception among states that international customary rule.3 This finding by the ICTY, terrorism required a prompt normative which raised the firm opposition of some response at the general level. In fact, the dissenting judges, bears witness to the fact Security Council was the only body that could that the ascertainment of custom in some areas produce such a prompt response in legally and by some international jurisdictions may binding terms, by providing a broad and remarkably depart from the standards tradi- expanded reading of its powers to act to main- tionally applied by the ICJ and widely tain or restore international peace and secur- accepted by mainstream doctrine. ity. It is of some significance that neither the Similar considerations apply to the inter- General Assembly, nor states individually, national regulation of the use of force voiced any strong objection at the time of under customary international law. As is enactment of resolution 1373. Subsequent well known, recent practice has remarkably attempts by the Council to act as lawmaker strained the law of the U.N. Charter and dif- have met with some opposition and quali- ferent claims have been put forward either to fications appended by several states to their foster an expansive reading of the Charter pro- approval of resolution 1540. Whatever visions, or to rely on customary international hubris one reproaches the SC for, its attempt law which would be coterminous with the to produce general law is also a way of mak- law of the Charter. The two instances of recent ing up for a lacuna in general international practice which best illustrate the current law making. strains on the international legal regulation Yet another challenge lies in the attempt of the use of force are the military interven- to revisit the process of customary law tion by NATO countries in Kosovo and the making. The much debated issue of how U.S.-led military invasion of Iraq. As will be 396 9780415418768_4_027.qxd 26/11/2008 02:41PM Page 397

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recalled, the use of force in Kosovo was underscored the need to take into account justified on grounds of humanitarian inter- the new modalities by which states could vention, undoubtedly a justification which falls freely express themselves in international outside the Charter. As far as Iraq is concerned, fora (Charney 1993). It must be conceded that several justifications have been used over a to leave the evaluation of the legality of any period of time by the U.S., among which given conduct to the ex post reaction of the anticipatory self-defense stood out. Other international community certainly presents a uses of force have stirred up quite a lot of major risk of over-contextualization of legal controversy, ranging from the interven- claims. However, this approach has the merit tion against Afghanistan in 2001 and the of respecting the inherent characteristics of Israeli attack against Lebanon in 2006 to minor the dynamic of customary law making, occurrences such as the U.S. bombings namely the formation of law by evaluating the against alleged al Qaeda affiliates in Somalia reaction vis à vis the unilateral claims put in January 2007. There are many issues that forward. The latter may be accepted, refused remain unsettled. Is the use of force against or acquiesced, thus giving rise to a confirma- terrorist groups on the territory of other tion of the existing law or to its modifica- states permitted? Can one intervene in anti- tion. The fact that the claim of anticipatory cipatory self-defense? If so, what are the self-defense, primarily if not exclusively, circumstances which may trigger such inter- used by the United States to justify its milit- vention? In fact, the problems that have ary intervention in Iraq has been largely arisen in this particular area are as much related rejected is not without consequence for to the content of the law as they are to the evaluating what the current state of the law way in which the law is perceived to be legit- on the use of force is. By the same token, the imately made and its existence ascertained. not negligible acquiescence in the military In fact, it is difficult to characterize such intervention in Kosovo leaves the door open instances in terms of customary interna- to further developments, which may confirm tional law. Bin Cheng used the qualification the communal perception of the legality of “instant customary law” to give account of certain practices of armed intervention in similar instances of state practice, in which specific contexts, where massive violations general practice and time requirements were of human rights need be brought to a halt. relegated to a secondary role (Cheng 1965). Furthermore, such methodology to reconstruct Customary law rules regulating the conduct the content of the law is no less predictable of states in outer space would thus form than the current state of uncertainty where “instantly” as states that had the technical cap- practically any argument can be put forward ability of undertaking such activities express to justify the use of force. them favorably as regards any given standard The attempt to stretch the notion of self- of conduct. However, as Jennings aptly defense to its outer boundaries at the detri- put it ( Jennings 1998: 742), one should have ment of the credibility of international law taken the hint that perhaps Bin Cheng in is evidence of the inadequacy of the current inventing the paradox had called it “instant” regulation, as well as the methods used to ascer- simply because it was not custom! Be that as tain its content. To portray certain instances it may, the traditional mechanisms of general of the use of force such as the U.S. air raids law making at international law need to be against Afghanistan, Sudan, and Iraq in the revisited against the background of the 1990s as instances of self-defense rather than changing demands of the international legal armed reprisals is to pay lip service to inter- system. The late Jonathan Charney rightly national law. If the law mystifies the realities emphasized the need for devising new of the societal body from which it emanates, mechanisms to create universal standards and it is doomed to lose both its credibility and 397 9780415418768_4_027.qxd 26/11/2008 02:41PM Page 398

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its capacity to control the social processes binding. In particular, whatever falls outside it aims to regulate. To abandon a formalistic the categories of treaties, custom or general approach to the law and opt for a regulatory principles of law is considered to lie outside scheme, which takes into account recent the realm of international legal normativity. practice is likely to increase respect for the The current approach to normativity is still law and avoid sanctioning the power politics based on the paradigms hard/soft law and that thrives on the current uncertainties. It is legally binding/non-legally binding norms. somewhat unfortunate that the ICJ, which Although such parameters still provide the wields a certain power in directing the main framework of reference, they no longer development of international law, has been provide a satisfactory explanation of normat- unable to take a firm stance on the issue of ive phenomena in international law. Suffice the use of force. Presumably divided within to cast a glance at international case law to its ranks, the Court has clumsily addressed the realize that such distinctions are far from being most challenging issues and carefully avoided straightforward and clear cut and that the way providing guidance to international actors.4 in which decisions are taken and judgments rendered by courts does not always entail rigorous adherence to such paradigms. Shifting boundaries of Attention to relative normativity was drawn normativity by Prosper Weil in a pioneering article at the beginning of the 1980s, in which a clear As Sir Gerald Fitzmaurice acutely noted warning was issued about relativizing norm- once, if in domestic legal systems there is often ativity in international law (Weil 1983). Weil’s uncertainty about “what is the law,” the addi- work has shaped the subsequent debate and tional difficulty at international law is that has caused international lawyers to approach this uncertainty also relates to “what the law the subject along similar lines. Most promin- is” (Fitzmaurice 1973: 251). In fact, the ently the distinction between hard and soft difficulty in identifying norms is tantamount law is made. As aptly noted by Abi-Saab (Abi- to placing an element of systemic uncertainty Saab 1987: 206f.), the expression soft law is at the heart of international law (Higgins 1994: not deprived of ambiguities as it may refer to 17). By no means, however, is this a new phe- the norm, the negotium (a soft legal norm). By nomenon. Even at the time when positivism way of example, a treaty norm worded in such represented the predominant and almost a qualified and conditional manner as to sug- exclusive theoretical framework, some among gest no real undertaking by the state will be the most eminent members of the profession difficult to enforce, regardless of the binding critically approached the issue of sources and nature of the instrument in which it is con- acknowledged the difference with domestic tained. Or, soft law may be taken to point to legal systems. Unlike domestic legal systems, the instrumentum (a soft legal instrument), that where the status of sources is predetermined is the instrument containing the norm. For by constitutional arrangements and easily instance a norm of a General Assembly resolu- discernable, the absence of any centralized and tion may derive its legal strength from the hierarchically structured system of sources importance of the instrument or the voting makes the task a difficult one in international process, but remains legally non-binding. law. This distinction can be used either to set Traditionally viewed as originating from the aside as non-legal whatever normative pre- sources listed in Article 38 of the Statute of scription falls short of a binding effect, hold- the International Court of Justice, international ing that the very essence of legal norms lies law norms have been categorized according in their being binding (Klabbers 1998). Or to the dichotomy legally binding/non-legally it can be used to differentiate between the 398 9780415418768_4_027.qxd 26/11/2008 02:41PM Page 399

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binding character and the legal effect of a representations of the current reality. In par- prescriptive statement, the two elements being ticular, the parameters by which the binary distinct. In so doing this approach divorces code is made operational are shifting and need the question of what constitutes a norm from to be reassessed. Similarly, the traditional whether or not the norm is legally binding approach to the hierarchy of norms in inter- by arguing that although some norms are non- national law demands a re-evaluation consist- legally binding, they are nevertheless often ent with current practice. Whereas jus cogens more efficacious in practice than their legally norms are traditionally viewed as voiding the binding equivalents, and that these instances competing norm, practice suggests that they of “soft law” are just as effective in address- play a more nuanced role in reality and are ing the needs of the international community perhaps better seen as reflecting the funda- as legally binding norms. mental values of the international community These distinctions are not as clear cut as and serve to influence inter alia the inter- one would like to think and soft law may pretation of rules. This may well be the way become relevant in highly heterogeneous to bring jus cogens forward, as suggested by contexts. It may set the preparatory stage Judge Dugard in his concurrent opinion for the development of international hard law, attached to the ICJ’s judgment on the Armed be it a treaty or a custom, or provide a model Activities on the Territory of the Congo case, where for internal legislation. It may provide the the Court finally sanctioned the category of normative standards to enforce treaty or peremptory norms.5 While agreeing with customary due diligence obligations or be the Court that jus cogens may not sweep away used interpretatively to give further strength everything that stands in its way, including arguments based on hard law. Overall, an effort the principle of the requirement of consent must be made to better grasp the function- for the exercise of jurisdiction by the ICJ, ing of soft law. It has to be acknowledged that Dugard highlights the peculiar nature of soft law fulfills important functional needs peremptory norms on the grounds of their within the system, as an increasing recourse alleged hierarchical superiority. Peremptory to it by states clearly attests. To look at soft norms do not only express fundamental law as a form of normative pathology has principles, they also give legal form to the little connection with the realities of inter- fundamental policies of the international national relations. Soft law could be regarded community, thus advancing both principle and instead as a sign of maturity that the system policy.6 By attributing to them a predominant has attained, and as an important compon- interpretive role in the process of judicial ent of “post-tribal international law” (Allott choice, peremptory norms may eventually 1998: 413). In fact, all developed societies bring about the desired result of fostering their are familiar with the “complexification of underlying values, while at the same time normative space” phenomenon. Rather than avoiding the rigidities of their mechanical intervening by traditional command and con- application which pretends to trump any trol instruments, domestic decision makers conflicting norm (Bionchi 2008). often prefer to opt for recommendations and An additional challenge to normativity incentives. International law may be going is represented by what Lowe calls “inter- through a similar process. stitial norms”, yet another by-product of the As the use of the binary code legal/illegal complexity of international law. By this is what characterizes and distinguishes the expression, reference is made to normative law from other social practices at both the concepts, which do not possess an auto- domestic and international level, one needs nomous normative charge of their own, but to inquire afresh if the connotations we tradi- rather aim to “direct the manner in which tionally attach to these terms are still accurate competing or conflicting norms that do have 399 9780415418768_4_027.qxd 26/11/2008 02:41PM Page 400

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their own normativity should interact in frustration of international lawyers has long practice” (Lowe 2000b: 216). The examples been a reason for them to demonstrate that are numerous. Such concepts as proportion- international law is like domestic law. Such ality or reasonableness are often called to fulfill an effort, inevitably doomed to failure, given the function of mediating and reconciling the differences between the two legal orders, opposite or conflicting normative claims on lies at the root of many theories developed the basis of flexibility and ad hoc interest by international lawyers in a vain attempt to accommodation. These and other normative appeal to their domestic law colleagues. As is concepts emerge from the societal body and well known, the disdain of domestic lawyers they tend both to express the policies that the for international law is largely due to the community wants to pursue and to occupy absence of adequate enforcement mech- normative space. By exercising a strong pull anisms in the international legal system. The towards primary rules they influence their con- existence of rules would not suffice to content and shape their interpretation. Other confer the dignity of the “law” to standards that cepts such as sustainable development and the remain unenforceable. As to be expected, precautionary principle, on the one hand, or international law has not evolved in the elementary considerations of humanity or the direction of developing enforcement mech- dictates of public conscience underlying the anisms similar to those in domestic legal Martens clause, on the other, are apt illustra- systems. Although there has been a prolifer- tions (in such diverse areas as environmental ation of international courts and tribunals, law and international humanitarian law) of “enforcement,” as traditionally understood in normative concepts that escape traditional domestic legal orders, is not international law’s categorizations (Bianchi 2006b). The func- main strength. This may well be evidence of tion performed by interstitial norms is not a lost battle or of a lack of communication simply that of ensuring a higher degree of that has created a major misunderstanding. systematic coherence in international law. It is noteworthy that in his famous book Although they serve the purpose of directing on how nations behave, Louis Henkin boldly law making, interpretation and adjudication asserted that “almost all nations observe with a view to conforming to the policies that almost all principles of international law and the international community thinks desirable almost all of their obligations almost all of to pursue, they also have the capacity to pro- the time” (Henkin 1989: 69). What might vide the degree of generality and flexibility have been the strenuous defense of the cor- required to adjust the law to the changing poration by one of its members, has turned demands of the societal body. out to be a widely accepted proposition, the The capacity to accommodate such empirical value of which has been given sup- normative developments in the fabric of port by a number of sectoral studies. The international law theory and practice will reason why nations obey international law has be crucial to enhance its credibility and, been thoroughly investigated and interesting arguably, its future functioning. theories have been put forward to explain why this may be so. Koh, for instance, argued against the background of his theory of trans- Efficacy: international lawyer’s national legal process that a transnational inferiority complex actor’s moral obligation to obey international law is internalized in domestic legal sys- International lawyers have long suffered tems to become a domestic legal obligation from an inferiority complex towards their that shapes domestic law by international law, fellow domestic lawyers. The complex has thus contributing to a mutually reinforc- caused a great deal of negative effects, as the ing process of interest and identity creation 400 9780415418768_4_027.qxd 26/11/2008 02:41PM Page 401

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between the national and the international Accountability mechanisms and spheres (Koh 1991, 1996b). their heterogeneous character Certainly, the overall efficacy of the system can be further enhanced. What can Admittedly, the notion of accountability is hardly be denied, however, is that there is a not strictly legal. Responsibility and liability great deal of spontaneous observance of would rather be the preferred terms for international law. When judging the overall lawyers to describe the way in which an efficacy of the system, regard should be individual or an entity can be held account- had not only to enforcement mechanisms, able at law. And yet the term “accountabil- properly so called, but to all those elements ity” seems better suited to encompass and that can contribute to the effective imple- describe the panoply of mechanisms that can mentation of international standards. Little be used to control the conduct of relev- matters whether the vocabulary used varies ant international law actors. The standards and reference is alternatively made to com- against which such an evaluation must be pliance, observance, obedience, or whatever performed are numerous and not all of them else. The goal is no longer to show how close are amenable within the purview of the to domestic legal orders the international law, properly so called. That said, it would legal system is, but rather to appreciate its be misleading to think that accountability overall capacity to ensure respect for its stands in contradistinction to legal respons- normative standards. ibility, which continues to be the most The traditional obsession of international relevant form of accountability for some lawyers with efficacy has presumably made of the actors, such as states, international international legal scholarship fertile ground organizations and individuals. for the law and economics movement to As far as states are concerned, the adoption thrive. Rational choice and game theories by the International Law Commission in provide for many the ultimate explanation of 2001 of the “Articles on State Respons- why there is international law compliance, ibility” after more than 40 years since the even if this disrupts the very idea of law, in inception of the codification process – particular the idea of the law that the real par- admittedly the longest period of time it has ticipants on the ground actually have of the ever taken for the ILC to accomplish codi- game they are playing. The mantra that the fication of an area of international law – “law is efficient” pervasively permeates recent significantly contributed to systematizing scholarship and heralds new times for inter- one of the most controversial areas of international law (Guzman 2008). The bundle of national law (Crawford 2002a). The ICJ has normative assumptions and presuppositions of sanctioned the Articles, endorsed the same year the law and economics movement makes the by the General Assembly,7 on different occa- boundary between the descriptive and pre- sions and held some of them as declaratory scriptive dimensions of the theory a tenuous of customary law.8 This process of mutual one. Whether rational choice is the beha- reinforcement and legitimization between vioral model that shapes the conduct of the the Court and the ILC is evidence that actors in international law remains unsub- the formal status of the Articles, certainly an stantiated against the background of empir- instrument of soft law at the outset, is largely ical observation. To be sure, the new myth irrelevant to their practical impact on inter- that the “law is efficient” is appeasing the national practice. This, in turn, may be an conscience and scientific zeal of many an inter- argument to advise against their being sub- national lawyer but, whether actual social prac- mitted to a treaty negotiation process with a tices can be satisfactorily explained on the basis view to the adoption of a convention on of such theory remains open to question. state responsibility. This option, so far put off 401 9780415418768_4_027.qxd 26/11/2008 02:41PM Page 402

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by the General Assembly, would have the its effective implementation. International obvious disadvantage of re-opening negotia- criminal jurisdictions have been scant until tion on the most sensitive issues of state respon- recently, and the International Criminal sibility and would make the overall efficacy Court is still in its infancy. Domestic juris- of the would-be convention dependent on the dictions, which, according to the principle number of states that eventually ratify it. It of complementarity,11 will bear the main is to be hoped that the accomplishment of burden for adjudicating international crimes, the ILC in bringing to completion such a have not been very active on the enforcement difficult codification will not be disrupted by side (Ratner and Abrams 2001: 160 ff.), untimely diplomatic initiatives, particularly at mostly due to the carelessness of national leg- a time when the articles appear to be steadily islators in failing to provide domestic courts consolidating in state practice. with the necessary enabling legislation to As is well known, the ILC has also under- apply international criminal law standards. taken the codification of the responsibility Different considerations apply to the of international organizations.9 Partly to be accountability of transnational corporations. developed by analogy to the law of state International legal scholarship has exten- responsibility, partly to be inferred from sively dealt with this subject. The most the rules of each organization’s constitutive impressive account of a theory of the legal instrument, the codification is no easy task. responsibility of corporations for human Piercing the veil of the international organ- rights abuses is Steven Ratner’s book-length ization, and holding individual member Yale Law Journal article (2001–2002). Ratner states accountable for their own conduct, are develops an international law-based theory among the numerous difficulties. It must of corporate responsibility, whereby interna- be conceded that the recent case law of tional obligations can be deemed to address international tribunals, often influenced by corporate entities insofar as the latter coop- considerations of political expediency and erate with states and commit violations of opinable judicial policies,10 are unlikely to human dignity “of those with whom they have help the task of the ILC special rapporteur in special ties” (Ratner 2001–2002: 449). An putting forth fair and socially acceptable array of tools for the implementation of solutions. Be that as it may, the success of the the theory is also put forward, ranging from codification process, which could be sanc- corporate-initiated codes of conduct, NGO tioned simply by its completion in a reason- scrutiny, and national legal regimes to soft able time frame, is likely to enhance the system international law and treaties. The merit of of accountability mechanisms at interna- Ratner’s theory lies in its comprehensive tional law with reference to entities the character and in its foundation on international activities of which are more and more rele- law rather than the domestic law of any vant to international law. particular state. Given that a large part of As far as individuals are concerned, mech- domestic litigation involving the human anisms of legal accountability have steadily rights abuses of corporate entities has taken developed since Nuremberg. The principle place in the U.S. on the basis of the Alien Tort of individual criminal liability for at least some Claims Act, and that most of the literature core international law crimes is widely recog- relies on this strand of domestic case law to nized as a matter of customary international account for the responsibility of corporate enti- law, and individual criminal liability is also ties ( Joseph 2004), such a wider focus is indeed attached to a number of conducts proscribed welcome. Furthermore, Ratner emphasizes the by specific treaties. If the principle of indi- importance of other elements, not necessarily vidual criminal liability is no longer seriously of a legal character, which may prompt the called into question, major flaws still hamper accountability of corporate entities (Ratner 402 9780415418768_4_027.qxd 26/11/2008 02:41PM Page 403

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2001–2002: 545). Corporate social respons- the International Court of Justice on matters ibility as well as market incentives to comply of attribution. It will be recalled that in one with international standards in certain areas of the few instances of conflicting juris- may well provide additional tools for a com- prudence among international jurisdictions prehensive system of corporate accountability. the ICJ made use of the criterion of “effective A different approach to the same issue, control” to attribute the conduct of groups of based on an expansive reading and use of the individuals to a state,13 whereas the Appeals law of state responsibility, has been recently Chamber of the International Tribunal on advocated in international legal scholarship Former Yugoslavia (ICTY) later adopted a (McCorquodale and Simons 2007). By much softer criterion, that of “overall con- focusing on the applicability of human rights trol.”14 In the recent Genocide case,15 the ICJ obligations incumbent on the home state to has reiterated its previous jurisprudence and the extraterritorial acts of the national corporate made clear, not without some institutional entity, the application of the relevant rules of acrimony,16 that general international law state responsibility to the conduct of home requires “effective control” for conduct by states with a view to holding them account- an individual or a group of individuals to be able for the acts of their corporate entities has attributed to a state. Besides the institutional been invoked.12 This approach has the merit aspects of the dispute between the two tri- of fostering solutions that are clearly available bunals, it is reasonable to speculate that the within the system, the rules on state respons- ICJ, whose self-perception as the guardian of ibility, and to provide states with an incen- the international legal system is traditionally tive to act diligently if they want to avoid strong, when opting for the much more international responsibility. To argue that stringent criterion of “effective control” states should be responsible for the acts of must have had in mind not only the circum- national corporate entities abroad makes stances of the case, but also the potential sense, particularly as one realizes that home application of the criterion to other areas, states attempt to impose their laws and reg- including state responsibility for terrorist acts ulations on foreign subsidiaries of corporate and state responsibility for the extraterritorial nationals in a number of areas, ranging from acts of corporate entities. The discussion boils export controls to antitrust regulation. The down to determining whether for the pur- argument that the same states should be pose of assuring the accountability of non- accountable for the acts of the same entities, state actors, to have recourse to traditional when these violate human rights standards mechanisms of state responsibility is a good could reasonably follow. Criteria of attribu- normative strategy to ensure greater effective- tion for the purpose of state responsibility, such ness. At the very least, this can be doubted. as the exercise of elements of governmental As regards the accountability of NGOs, authority or the direction or control by the reliance on traditional international law state of the relevant activities could well pro- mechanisms of accountability is of no avail. vide adequate tools for the implementation In this area, the most engaging attempts to of such normative strategy. develop mechanisms of accountability rely on Two considerations, however, might interdisciplinary approach (Bluemel 2005– stand in the way. The first is the acknow- 2006), where an attempt is being made to ledgment that states do not seem inclined to move the debate of accountability from the accept such an expansive reading of their actor to the function performed. In so doing, obligations under international law and inter- a composite theory of NGO accountability national practice does not seem to develop in international governance has been put in that direction. The second remark stems forward, which does away with many of the from an assessment of the judicial policy of traditional dividing lines peculiar to the field 403 9780415418768_4_027.qxd 26/11/2008 02:41PM Page 404

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of law such as international/domestic and are more familiar with domestic law, in par- public/private. To speak in terms of interna- ticular constitutional law, may be linked to tional governance rather than in terms of inter- the development of the evolutive interpreta- national legal order may be more an issue tion doctrine by the Court and the charac- of disciplinary allegiance than a real differ- terization of the European Convention as a ence of conceptual categories. Furthermore, “living instrument” (Bernhardt 1999: 24). to dismiss as “non-law” social practices that Indeed, a sociological analysis of interpreta- constitute the fabric of day-to-day international tion can help us understand that a specializa- life and are increasingly perceived by the tion in a particular domain of international law relevant actors as demanding respect as a provides the “interpretive community” with matter of law, may be an attitude that fosters a “correct” understanding of the law (Fish certain vested professional interests, but it is 1980: 167–73). The “correct” interpretation unlikely to advance the cause of international assured by the interpretive community has the law and to enhance its credibility (Krisch and effect of marginalizing alternative interpreta- Kingsbury 2006b). In this respect, interdisci- tions. As Foucault famously said, the culture plinary dialog may well produce interesting of the discipline is an effective procedure to outcomes and, for once, may be instrumental control and delimit the discourse in the dis- in providing a better understanding of soci- cipline (Foucault 1981: 61). The actors of any etal dynamics. given “interpretive community” not only speak the same language and share the same set of values, they may also have the same Complexity, specialization, vested interests in preserving the monopoly and judicial fragmentation: of what is regarded as a legitimate interpre- the system under strain or tation and tend to support one another in the a sign of maturity? effort of maintaining their position of power within the discipline. That specialization has It may well be true that the ever-increasing created a panoply of interpretive communi- expansion and complexity of international ties has produced a widespread perception law is credited to its maturity (Franck 1995: of a patchy reality, composed of different 4ff.). However, the very same phenomenon normative regimes, each characterized by a is likely to produce deep anxieties among certain degree of independence. However, the international lawyers and to cause some problem is the fragmentation into interpre- objective difficulties in ensuring the smooth tive communities! functioning of the system. Inevitably, in a A fatal blow to the self-reassuring percep- highly complex normative system without any tion of the international legal order as a centralized authority, issues of coordination unitary system has been struck by the frag- and conflict among its different components mentation of international jurisprudence. As are likely to arise and their solution may not the very essence of the judicial function be immanent. implies an objective and independent assess- One effect of the complexification of ment, the existence of conflicting assess- international law is the drifting of the ments in a system where there is no judicial discipline towards a higher degree of special- hierarchy risks jeopardizing the international ization. Indeed, the extent to which special- legal order. The absence of a hierarchical struc- ization may affect the way in which we look ture is frequently recognized by international at the world is greatly affected by specializa- courts and tribunals, which tend to look at tion (Kuhn 1996: 50–51). As Bernhardt themselves as autonomous international once said, the fact that many of those work- judicial bodies.17 The jurisprudential frag- ing at the European Court of Human Rights mentation of international law has thus 404 9780415418768_4_027.qxd 26/11/2008 02:41PM Page 405

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created a certain anxiety, reinforced by the omnes, numerous scholars have identified proliferation of international courts and tri- fundamental norms with the distinguish- bunals. In fact, there is reason to be concerned, ing traits of the constitutionalization process as international courts have the tendency to (Mosler 1974; Simma 1994; Tomuschat 1993). view legal problems through the looking Hierarchically ordered norms, even without glass of their particular expertise. As Mark the backing of adequate institutional mech- Twain aptly said: “[T]o a man with a ham- anisms, could fulfill constitutional functions mer, everything looks like a nail.” (Peters 2006). Although the issue of legiti- The illusion that “managerial skills” would macy is a cause for concern, the existence of limit such a risk by guaranteeing the sound universal values that can be enforced at inter- management of conflict and coordination national, regional and domestic law levels between different sets of rules has rapidly is tantamount to a constitutional structure turned into disillusionment about the capa- in which different but complementary com- city of “legal techniques” to address and solve ponents may be looked at as a whole (de such problems. The International Law Com- Wet 2006a, 2006b). Other eclectic versions mission, aware of the need to act promptly have been proposed with a view to recon- to address such compelling concerns, has ciling the institutional and normative ele- recently produced a study,18 which attests to ments (Frowein 1994). The interaction of the difficulty of bringing order, by way of different layers of normative authority and interpretive techniques, in the intricacies of levels of governance, which already present regimes and norms collision and/or coordi- varying degrees of constitutionalization, is nation that characterize a highly incoherent advocated as the paradigm for the twenty- reality.19 first-century constitutionalism (Cottier and It is an irony of sorts that the debate on Hertig 2003). Integration of such constitu- the expansion, complexity and fragmentation tional elements as human rights protection of international law has gone hand in hand into existing allegedly self-contained regimes with a parallel debate on the constitutional- is also perceived as a way of constitutionalization of the international legal order. Some izing international law (Petersmann 2006). strands of international legal scholarship have Imaginative models of would-be interna- emphasized varying aspects of what can be tional orders continue to blossom and never roughly defined as the emergence of a con- has the debate on constitutionalism been stitutional order in international law. The so alive. obvious temptation for mainstream scholar- In fact, the contradiction between such dra- ship lies in looking at the U.N. Charter as matically distinct ways of looking at current an international constitution of sorts, either developments is more apparent than real, standing prominently as the only international and attests to the existence of those “post- document resembling a constitution (Dupuy modern anxieties” which characterize much 1997; Fassbender 1998b), or approaching of the contemporary literature (Koskenniemi such a status, despite falling short of some and Leino 2002). On the one hand, attention fundamental requirements usually associated is drawn to the difficulties of keeping the unity with national constitutions. of the system and ensuring its coherence By and large, however, the normative, as by interpretive techniques and institutional opposed to the institutional, dimension of coordination. On the other, such unity is international constitutionalism has been postulated and guaranteed by an alleged pro- emphasized. Thriving on an ever increasing cess of “constitutionalization” that makes consolidation of the notion of international international law look like domestic legal community and its foundational normative systems. It is a vision driven by despair or tenets, such as jus cogens and obligations erga more simply an act of faith. Such divergent 405 9780415418768_4_027.qxd 26/11/2008 02:41PM Page 406

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representations of the same reality pave the some commentators continue to think that this way for further remarks on the relevance is a distortion of the extant rules, as if the of the theoretical discourse to the future of latter were immutable. international law. Critical legal studies import into international law, by way of contrast, is mainly taken up with criticizing the presuppositions of The fragmentation of the the traditional international legal discourse, theoretical discourse and which, according to the critique, is a projec- its practical consequences tion of political paradigms, namely those of international legal liberalism. The internal By far the most compelling threat, however, inconsistencies of the liberal paradigm would seems to be the fragmentation of the doc- cause international law to swing constantly trinal discourse and theory’s difﬁculty to from apology to utopia, from concreteness to provide a satisfactory framing of the increas- normativity (Koskenniemi 1990, 2006). The ing complexity of international law. It is an skeptical outlook of critical legal scholars irony of sorts that fertile grounds for new does not provide a satisfactory account of approaches and theories to develop have international law either. Criticism takes place been provided by the inadequacy of for- at quite a high level of abstraction and its malism and the unsuitability of critical legal intended objective is not to provide an alter- studies – admittedly among the most pro- native theory but rather to “trash” the vari- minent approaches to international law – to ous mythologies of liberal legalism. If it were supply a satisfactory framework of analysis. not temerity, one would be tempted to trace Formalism, meant to refer to mainstream similarities between such apparently distinct positivistic doctrine, is still in many ways the approaches. First of all, they both tend to prevailing lingua franca of international law. neglect the social practice of international law, This approach suggests that we look at prac- characterized by its own logic and by the per- tice as raw materials that need be rationalized ception of the “players.” Furthermore, by and ordered in a systematic fashion. Inspired underscoring the international legal system’s and shaped by some of the fundamental inherent contradictions, critical legal studies tenets of western philosophy, this approach ends up construing its arguments starting tends to project into the practice the ideal of from the posture of formalism, namely the an absolute coherence, both diachronically and assumption of the coherence of law. Be that synchronically, at the price of distorting real- as it may, both formalism and its mortal ity by discarding any variance, which is at odds enemy, the critical legal studies movement with the preordained theoretical model. fails to provide guidance in understanding Contradictions are banned and the coherence international law. The former by failing to of the international legal order not only pre- adjust its frame of analysis to the chang- supposed but often times imposed. Rules are ing demands of international law and by considered as still and immutable normative pretending to continue to use intellectual propositions to which reality is doomed to categories which no longer account for the bend. The obsession with rules as they current realities, and the latter by limiting appear on paper goes well beyond reason- itself, by its own vocation, to a critique and ableness, when theory simply ignores the prac- deconstruction of the traditional approach, tice of international law in order to defend without venturing into a pars construens or alter- dogmatically what it thinks to be the appli- native normative project. Admittedly, this cable rules. When even states are ready to has left an empty space for new approaches shift the legal paradigms of self-defense, to burgeon and prosper.

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The “mushrooming of theory” (Carty movements that may have important prac- 1991: 93) has thus spurred countless tical effects on the functioning of the inter- approaches and methods, among which even national legal system. the skilled reader will have difficulty in ori- What is striking, however, is that most entating herself. The once “invisible college would concede that the ultimate object of scholars” (Schachter 1977) has turned into of thinking about international law is to myriad highly visible professional circles. improve mechanisms of global governance There is no universal language of international and the condition of humankind (Slaughter law anymore: there are as many dialects as there and Ratner 1999). Such a noble cause rejoins are observers and commentators. Most of the the sophisticated analysis of other authors who, problems find their roots in the way in at the (provisional) end of a stimulating, which we think of international law. It may albeit winding, intellectual itinerary, look at well be true that in diversity lies richness. It international law as a kind of “secular faith,” would be simplistic, however, to believe that a “project of critical reason” geared to “re- such a huge variety of approaches leading to establishing hope for the human species” an extreme doctrinal fragmentation has no (Koskenniemi 2007a: 30). It is both stimu- bearing on the practice of international law lating and disconcerting that the panoply of and, consequently, on the functioning of the theories and opinions converge, after years of international legal system. confrontation, at such fundamental a truth. The reason lies in the very ontology of law, Divergences persist, however, on how to more particularly in its psychological nature. achieve such an ambitious goal. As Philip Allott has noted: “[S]ociety and law exist nowhere else than in the human mind” (Allott 2000: 70). Paul Amselek, too, is con- Conclusion vinced that law has no separate existence in nature, nor can one bump into it in the actual The problem with so many different theories world: it only inhabits “l’esprit des hommes” is that they all have a certain degree of plau- (Amselek 1989: 29–30). The acknowledgment sibility and explanatory force. Through the of the psychological nature of the law brings looking glass of each and every theory some with it important consequences. Unlike bits and pieces of the system seem to become other instruments of physical measure, the legal more readily comprehensible and easy to rule is a relative instrument of measure: it may grasp. However, when such theories lay vary. One of the factors of such variations is claim to providing an all encompassing and the different manner in which it may be con- unitary vision of the larger whole, their ceptualized, which is scholars’ main task. The capacity to explain the nooks and crannies extreme fragmentation of the theoretical of the international legal system subsides and discourse of international law may well lead gives way to a deep sense of dissatisfaction. to normative relativism and eventually, to the Perhaps, one sensible way to move the demise of the system. By altering the relevant debate forward is to realize that international actors’ perception of their activities, theory law as a social practice remains a pragmatic may alter the way in which the legal world project. The inconsistencies that according is constructed (Fish 1989: 208). Scholars to some would undermine its credibility are must be aware that theory matters. If nihil- perhaps what allow the system to be opera- istic and excessively skeptical approaches tional and to fulfill its regulatory function, dominate, there is a risk of significant by constantly evolving and adjusting to the change in practice. Among new theoretical changing demands of a heterogeneous soci- approaches to international law there are etal body.

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Whether a grand political project will ction of a Wall in the Occupied Palestinian emerge to shape and sustain such a diverse Territory, ICJ Advisory Opinion, July 9, 2004, reality is premature to tell. Meanwhile, ICJ Reports 2004, p. 136; Congo vs. Uganda (Case Concerning Armed Activities on the international law should continue to repres- Territory of the Congo), Judgement of ent a driving force in assuring, in a flexible December 19, 2005, ICJ Reports 2005, p. 168. and pragmatic manner, the orderly interplay 5 See Congo vs. Rwanda (Case Concerning between the different social forces that shape Armed Activities on the Territory of the contemporary international relations. But Congo), Judgment of February 3, 2006, ICJ Reports 2006, paras. 64, 125, pp. 32, 52. besides its pragmatic character, international 6 See Congo vs. Rwanda, Separate Opinion of law is also capable of materializing collective Judge ad hoc Dugard, ICJ Reports 2006, para. beliefs and coalescing consensus on them. 10, p. 89. In this respect, international law is an im- 7 General Assembly, Resolution 56/83 of portant part of any political project, whatever December 12, 2001. 8 Legal Consequences of the Construction of a Wall connotations the latter may take up. in the Occupied Palestinian Territory, ICJ It is against this background that the chal- Advisory Opinion, July 9, 2004, ICJ Reports lenges expounded above ought to be evalu- 2004, paras. 147 ff.; Bosnia and Herzegovina vs. ated. The fascinating character of any challenge Serbia and Montenegro (Application of the lies in the uncertainty of the outcome. Convention on the Prevention and Punish- ment of the Crime of Genocide), Judgment of Ultimately, whether or not these challenges February 26, 2007, paras. 385, 398, 407, 431. will be met depends on a number of variables, 9 Special Rapporteur G. Gaja has so far sub- the most important of which are not within mitted six reports. See Sixth Report on the purview of international law. Almost Responsibility of International Organizations certainly, the way in which we have long by G. Gaja Special Rapporteur, International Law Commission, 60th Session, A/CN.4/597. understood international law is inadequate. 10 For a recent example, see European Court of The old king is dead. Long live the new Human Rights, Behrami vs. France (application king or queen. Only time will tell us who he no. 71412/01) and Saramati vs. France, Germany or she is. and Norway (no. 78166/01), Grand Chamber, May 2, 2007; BeriC and Others vs. Bosnia and Herzegovina (Application no. 36357/04), Admissibility decision, October 16, 2007). Notes 11 Article 17 of the Rome Statute of the International Criminal Court provides for 1 The worldwide popularity of Harry Potter and the inadmissibility of cases that are being his saga hardly warrants the specification that investigated or prosecuted by a state that has Hogwarts is the school of magic arts that our jurisdiction over them, unless that state is eponymous hero attends. unwilling or unable genuinely to carry out the 2 “The subjects of law in any legal system are investigation or the prosecution, thus creating not necessarily identical in their nature or in a primacy of national jurisdictions over the ICC. the extent of their rights, and their nature 12 For an earlier approach along similar lines, see depends upon the needs of the community. Fatouros 1983. More generally, on the appli- Throughout its history, the development cability of the rules of state responsibility to the of international law has been influenced by conduct of individuals or groups of individu- the requirements of international life,” ICJ als, see Roucounas 2005 and Wolfrum 2005. Reports 1949, p. 178. 13 Nicaragua vs. United States of America (Case Con- 3 See Prosecutor vs. Stanislav Galic′, Case No. cerning Military and Paramilitary Activities IT-98-29-A, Judgment, Trial Chamber in and against Nicaragua), ICJ Reports 1986, December 5, 2003, and Appeals Chamber, pp. 64–5, para. 115. November 30, 2006. 14 See Prosecutor vs. Dusko Tadic, ICTY, No. 4 See Islamic Republic of Iran vs. United States of IT-94-1-A, Appeals Chamber, July 15, 1999, America (Case Concerning Oil Platforms), paras. 115–45. Judgment of November 6, 2003, ICJ Reports 15 See Bosnia and Herzegovina vs. Serbia and 2003, p. 161; Legal Consequences of the Constru- Montenegro (Case Concerning the Application

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of the Convention on the Prevention and 16/99 of October 1, 1999, Series A No. 16, Punishment of the Crime of Genocide), ICJ para. 61. Reports 2007, paras. 396–407. 18 “Fragmentation of International Law: Diffi- 16 Ibid., para. 403. culties Arising from the Diversification and 17 See the following cases: Celebici, IT-96-21-A, Expansion of International Law. Report of the ICTY, Appeals Chamber, Judgment of Feb- Study Group of the International Law Com- ruary 20, 2001, para. 24; The Right to mission”, finalized by Martti Koskenniemi, Information on Consular Assistance in the A/CN.4/L.682, April 13, 2006. Framework of the Guaranteed of the Due Process 19 For a critique of the kind of coherence the study of Law, ICtHR, Advisory Opinion, OC- focuses on, see Del Mar 2008.

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Abbott, Kenneth 13, 17, 19, 23, 25 Algeria 327 Abi-Saab, George 47, 398 alienage 346 Abu Ghraib prison 233–5, 237 Allott, Philip 181, 184, 407 accountability 52, 255–7, 258, 395, 401–4 al-Qaeda 46, 167, 234, 283–4, 285, 286, 287, accretion 259–60 290, 397 Acheson, Dean 91, 201–2 Alston, P. 305, 395 Advisory Opinion on Namibia 83 “Alternatives to ‘legalization’: richer views of Afghanistan 202–3, 286–7, 397 law and politics” (Finnemore and Toope) Africa: bio-cultural knowledge 320–3; colonial 31n42 IPR heritage 327–9; colonization of 317–18; Álvarez, Alejandro 145, 159–61, 161, 164n28 human rights system 306; imposition of Ambiguities of Power, The (Curtis) 93–4 Eurocentric IPR on 316–18; indigenous American Anthropological Association 335–6 peoples 334; and the inventive process 323–5; American Institute of International Law 160 and IPRs 7, 316–29; marginalization 318; American Journal of International Law 16–17, 26 patent ofﬁces 327; patent system 320; public Amselek, Paul 407 domain 325; traditional knowledge 322–3 Anarchical Society, The (Bull) 117 African Charter on Human and Peoples’ Rights 306, anarchy 60, 61 309 Anaya, James 336, 339 African Intellectual Property Organization ancient international law 4 (OAPI) 327 ancient world 115–16, 124–5; diplomacy African Regional Industrial Property 118–20; religion 123–4; state systems Organization (ARIPO) 327 116–18, 121, 125; treaty practices 120–3; African Union 335 war in 123–4 Agenda 21 357, 365, 368, 389n6, 390n22 Anghie, Antony 23, 132 Aid for Trade agenda 296 Angola 94 Akehurst, M. 85 Anker, D. E. 349 Akhavan, Payam 243 Annan, Koﬁ 207 Alcorta, Amancio 159, 163n24 Antarctica 77 Alexandrowicz, Charles 132 Anti-Ballistic Missile Treaty 219 Alfaro, Ricardo 270 Arar, Maher 289

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Arend, Anthony Clark 15, 16, 18, 23 Bolton, John 217 aristocratic international, the 139 boundary delimitations 102 armed attack 202, 203–4 Bourdieu, Pierre 162n5 Armstrong, D. 229 Bouwsma, William J. 127 Arrest Warrant case 276 Boyle, H. 372 “Articles on State Responsibility” 401–2 Bradley, Curtis 266n12 Ashburton, Lord 201 Brazil-Retreated Tires 384–5 Asia-Paciﬁc Partnership for Clean Development Bremer, L. Paul, III 229 and Climate 213 Brockliss, Laurence 136–7 Association for the Reform and Codiﬁcation of Brundtland, Gro Harlem 356–7 International law 149 Brunelleschi, Filippo 319 atrocities 269, 273, 312 Brunnée, J. 229 Austin, John 146 Brush, Stephen 324 Australia 89–90, 338 Brütsch, Christian 31n42 authority control test 16 Bugbee, Bruce William 319 autonomy 334–5, 342 Bull, Hedley 117 autopoiesis 51 bureaucratic distance 256–7 axis of evil 45 Bush, George W. 198, 204, 229, 285, 288 Bush administration 44, 50, 102, 203, 211, 213, balance of power 61, 142 220, 226, 236–7, 285 Balick, Michael 323 Bush Doctrine, the 204 Bangui Agreement 327 Byers, Michael 16, 17–18, 18, 23, 24 Bantekas, Ilias 167, 169, 174 Bynkershoek, Cornelis van 127–8 Barbie case 277 Byrne, R. 352 Barnett, Michael 23, 25 Bartelson, Jens 98 Calvo, Carlos 145, 157, 158–9, 159, 161, Bartolus of Sassoferrato 126 163n24 Basis for Relations between Finland and the Russian Canada 102, 339, 385–6, 387 Federation 366 “Carl Schmitt, Hans Morgenthau, and the Bassiouni, Cherif 269 image of law in international relations” Baxi, Upendra 304, 305 (Koskiennemi) 21 Baxter, Richard 281–2 Caroline case, the 201 Beck, Robert 15 Caroline criteria 227–9 Beckett, Sir Eric 89–90, 90 Carter, Jimmy 108, 109 Bederman, David 15, 21 Case Concerning United States Diplomatic and behavioral regularities 22–3 Consular Staff in Tehran (ICJ Reports 1980) Bellinger, John, III 218, 227 168–9 Bello, Andrés 157–8, 158–9, 161 Cassese, Antonio 168, 169 Bentham, Jeremy 145, 146, 304 Central African Republic 243 Benvenisti, Eayal 19, 22, 23, 24, 27–8 CERES (Coalition for Environmentally Berlin Congresses, 1878 and 1885 142, 144 Responsive Economics) 76 Bernhardt, R. 404 Charlesworth, Hilary 308 Bertalanffy, Ludwig von 104 Charney, Jonathan 397 Betts, A. 351 Charter of Economic Rights and Duties 72 Biddle, Francis 270 Charter of the International Military Tribunal 271, Biersteker, Thomas J. 20 272, 275 biological weapons 212, 218 Chatham House statement, the 204, 205 Bismarck, Otto von 102 Chertoff, Michael 216–17 Blair, Tony 197, 198, 224, 228–9 Chimni, B. S. 349, 350, 351, 352, 353 Bluntschli, J. C. 148 China 116–17, 167, 218, 221; BRITISH Bodin, Jean 58, 183 recognition of communist government 87, Bolivar, Simón 155–7 88, 89–93

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Chinkin, Christine 22, 170 Convention Relating to the Status of Refugees Christianity 166, 167, 174, 175 345–6, 347, 349, 350 church and state, separation of 168–70 cooperation, and the international legal system Churchill, Winston 198 103 Cinotti, David 169 copyright 317 civil rights 252 Corps Universel Diplomatique du Droit des Gens civil society 65 (Dumont) 138–9 civilization 156, 163n16 Cosnard, Michael 23 clash of civilizations 45 Council of Europe, Committee of Ministers 83 Claude, Jr., Inis L. 36n95 counterinsurgency 286–7, 291 climate change 8, 24, 75, 213 Counter-Reformation, the 135 Cobbett, Pitt 102 counterterrorism 284–6 coercion and coercive systems 106–9 Craig Barker, J. 18 collective security 5, 62, 205–8 creole legal consciousness 155–7, 162n7, 162n12 Colombia 335 crime 189. see also international crime; definition colonial expansion 131–3 241, 268; treaty 241, 273 colonial international law 144 Crucible Group 324–5 colonialism 143–4, 145, 159, 271, 312, 316–29, Cuban Missile Crisis 201–2 334 cultural heritage 337–8 Columbia school 62–3 culture, right to 7, 331–43; and development communism 62 340–2; and land 338–40 complexification 404 Curtis, Mark 93–4, 94, 98 Conference on Security and Cooperation in Custom, Power, and the Power of Rules, (Byers) Europe 193 16 Congo, Democratic Republic of the 1, 243 customary law 72, 72–3, 75, 82–3, 102, 110n1, Congress of Vienna (1814–15) 143 360, 363, 396–7 consensual law 101 Cutler, A. Claire 25 consent 189 cybernetic modelling 104 Constant, Benjamin 148 constitutional democracy: benefits of RIL D’Amato, A. 82 251–4; compatibility with RIL 254–60; and Danner, Allison 243–4 robust international law (RIL) 249–65 Danzig 274 constitutional law 182–3, 262–3 Darfur 44, 243 constitutionalism 65–6, 251, 261–5, 405; De Indis (Vitoria) 129, 134 definition 261–2 De Iure Belli (Vitoria) 129 constructivist theory 16, 394 De Jure Belli ac Pacis (Grotius) 130–1, 134, 140 contractual law 147, 151 De Jure Praedae (Grotius) 137 Convention against Genocide 336 De la non Existence d’un Droit International Convention against Torture and Other Cruel, Americain (Sá Vianna) 159–60 Inhuman or Degrading Treatment or Punishment Decision on Differential and More Favourable 275 Treatment, Reciprocity, and Fuller Participation of Convention for Cooperation in the Protection Developing Countries 383 and Sustainable Development of the Marine Declaration of Legal Principles Governing the and Coastal Environment of the Northeast Activities of States in the Exploration and Use Pacific 359 of Outer Space 73 Convention on Biological Diversity 73, 73–4, Declaration on Permanent Sovereignty over 321, 369 Natural Resources 72 Convention on the Elimination of all Forms of Declaration on the Establishment of a New Discrimination against Women (CEDAW) International Economic Order 72 308 Declaration on the Right to Development 356 Convention on the Prevention and Punishment of the Declaration on the Rights of Indigenous Peoples 308, Crime of Genocide 272, 273 332, 333–4, 335

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Declaration on the Rights of Persons Belonging to early modern period 126–9, 139–40; collapse of National or Ethnic, Religious and Linguistic old order 129–30; colonial expansion 131–3; Minoritie 309 decline of the papacy 137; developments declarations 69–70, 72–3, 73 during 129–34; diplomacy 137–8; legal democracy. see also constitutional democracy: education 128, 134–7; methodological accountability 255–7, 258; authority 258; innovations 133; practice 128–9, 134–9; definition 254–5; development of global 48; treaties 138 and loss of self-governance 257–8, 259–60, “Earth Summit+5” 357–8 261; and robust international law (RIL) 6, Eckersley, Robyn 23, 24 250–1; transfer of authority 259 economic, social, and cultural (ESC) rights democracy theory 48 309–10 democratic deficit 256–7 effectiveness 9 democratic legitimacy 186–7 efficacy 400–1 Denmark 352 Egypt 94, 97 detainees, treatment of 233–5, 236–7, 288–9 Eichmann, Adolf 272, 275 determinism 59 Endeshaw, A. 317 Dias, Clarence 21 enforcement 106–9 Diehl, Paul F. 22 England, law of nations practice 134 Dinstein, Y. 238n8 English School, the 3, 14, 29n13, 61 diplomacy: in the ancient world 118–20; early Enlightenment, the 146, 183 modern period 137–8; training 138 environmental protection 2, 73, 361–3, 364–5, diplomatic history, and international law practice 384–5, 385 86–8 Eritrea vs. Yemen 176, 177 diplomatic immunity, in the ancient world Eritrea vs. Yemen (Phase Two: Maritime 119–20 Delimitation) 168 disaggregated states 63 Esbeck, Carl 169 discourse ethics 48 ésprit d’internationalité 142 dispute settlement, proliferation of mechanisms Ethics and International Affairs 61 191, 192 ethnic minorities 309, 336 Dixon, Sir Pierson 95, 96 ethnodevelopment 341 “Do legal rules matter” (Arend) 16 Eunomia 181 doctrine 85 Eurasil 352 doctrine of reservations 189 European Court of Human Rights 70, 173, 352, doctrine of subjects 394–5 404 Doha Development Agenda (DDA) 6, 8, 294, European Court of Justice (ECJ) 352 297, 379, 386–8 European Union 181, 184, 185, 186; and Doha Ministerial Declaration 296, 386–7 accretion 259–60; Brazil–Retreated Tires domestic jurisdiction 61 384–5; Constitution 175; and the domestic space 27 democratic deficit 256; E.U.–Asbestos Donnelly, Jack 310, 313 385; E.U.–Tariff Preferences Case 383–4; Dorril, S. 97–8 impact assessment tools 386; refugee law double-edged theory 172–4 351–2, 353; and robust international law Downs, George 24 (RIL) 250–1; and soft law 77; and Drahos, Peter 328n8 subsidiarity 260; transfer of power to Droit des Gens ou Principes de la Loi Naturelle 186; treaty 366 appliqués à la Conduite des Nations et des E.U.–Asbestos 385 Souverains (Vattel) 144, 146 E.U.–Tariff Preferences Case 383–4 drugs trafficking 270, 271 Evans, Carolyn 171, 172, 367 Duke University 18 Ewens, Lara 320 Dumont, Jean 138–9 exceptionalism 102, 179 Dupuy, Pierre Marie 82–3 extraordinary rendition 235, 289 duties 48 Eyewitness to a Genocide (Barnett) 25

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Falk, Richard 167, 168, 172–4 General Agreement on Tariffs and Trade federalism 262 (GATT) 2, 294, 295, 296, 298, 299, 376, Final Report of the Independent Panel to Review 377, 382, 383–4, 384 DoD Detention Operations (August 2004) General Directors’ Immigration Services 234 Conference 352 Financial Action Task Force (FATF) 75 general law 395–8 Financial Stability Forum 76–7 Geneva Convention, 1864 141 Finnemore, Martha 23, 24, 27, 31n42 Geneva Conventions, 1949 230, 230–1, 233–4, First World War 152 235, 275, 285 Fischer-Lescano, Andreas 51 Geneva Ministerial Conference 381 Fisheries Jurisdiction 83 genocide 271, 273, 275, 278 Fitzmaurice, Sir Gerald 93, 95–6, 398 Genocide Convention 275 Flauss, J. F. 347 Germany 142, 143, 145–6 force, use of 5, 197–9, 208, 396–7; in the Gesellschaft 45 ancient world 123–4; armed attack 202, Gilligan, Michael 243 203–4; the Caroline criteria 227–9; collective Gilpin, R. 60 security 205–8; humanitarian interventions Global Environment Facility (GEF) 357 206–8; monopoly on 46; necessity 202–3; global power matrixes 310–12 preventive self-defence 227–9; prohibition Global Reporting Initiative 76 of 197, 199, 199–200; proportionality global warming 8 202–3; and the second Iraq war 223–9; globalization 3, 27, 44, 47, 56, 310, 379 self-defence 84, 200–5; sovereigntist Goldsmith, Jack L. 19, 23, 110n4, 217 perspective 198 Goldsmith, Lord Peter 204, 206, 224 formalism 150–2, 406 Goldstein, Judith 295, 297–8 Foucault, Michel 133, 404 Gonzales, Alberto 236 Foundations of International Law and Politics Goodwin-Gill, G. S. 347 (Hathaway and Koh) 19 Göttingen, University of 18 Four Directions Council 322 governance 22, 403–4 Fox, Jonathan 177 Gowlland-Debbas, V. 348 fragmentation 4, 8, 50–3, 64–5, 180, 404–6, Grahl-Madsen, Atle 353n2 406–7 Great Britain: and the bombing of Libya, 1986 Framework for Conducting Environmental 84; colonial expansion 143; international Assessments of Trade Negotiations 385–6 recognition doctrine 91–3; justiﬁcation of France 52, 95, 143, 146 intervention 94; maritime dominance 145; Franck, Thomas 198, 200, 395 and the occupation of Iraq 230; Oman policy Franco-Prussian war (1870–71) 142, 143 93–8; practice 84; recognition of Chinese Franks, Sir O. 91 communist government 87, 88, 89–93; and free will 59 the second Iraq war 223, 224, 225–6, 228–9; French Revolution 129, 156, 282 terrorist threat to 284 Friedmann, Wolfgang 47 Great Deception, Anglo-American Power and World functional conﬂicts 51 Order, The (Curtis) 93–4 functional systems 51–3 Greece, Ancient 117, 119, 121, 122, 123, 124 functionalism 61–2 Greenstock, Jeremy 290 functionality 48 Greenwood, C. 229 Grewe, W. 60 GabDíkovo vs. Nagymaros 360–1, 364, 366, Gross, Leo 60 369–70, 370 Grotius, Hugo 126, 127, 128, 130–1, 132, 133, game theory 103, 110 134, 137, 140, 148, 207 Gardiner, Richard 326 Guantanamo Bay Naval base, Cuba 285 Gayler vs. Wilder 326 Guiding Principles on Internal Displacement 71 Gemeinschaft 45 Gulf Wars. see Iraq wars Genealogy of Sovereignty, A (Bartelson) 98 Gurowitz, Amy 23

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habitus 162n5 252, 253–4, 264; sexual minorities 309; and Hague Convention (IV), Convention Respecting the soft law 73, 74, 76; standard setting 304–5; Laws and Customs of War on Land 230 and subsidiarity 261; and Third World norms Hague Convention Respecting the Limitation of the 307–8; trade-related, market friendly Employment of Force for the Recovery of Contract (TREMF) 310; western orientation 311; Debts 199 women’s rights 308 Hague system, the 61–2, 142 Human Rights Committee 305, 336 Hamdan vs. Rumsfeld 285 Human Rights Watch 312 Hamidullah, Muhammad 166 humanism 135–6, 139 Handl, Gunter 360 humanitarian internationalism 141 Harare Protocol 327 humanitarian interventions 2, 5, 206–8 Hathaway, Oona Anne 19, 26, 106–7, 348, humanitarian law 171, 180 349–50 Hume, David 61 Havana Charter 376 Humean fork problem, the 59, 61 hegemonic custom 23 Hurd, Elizabeth 173 hegemonic stability 60 Hurrell, Andrew 296 Helsinki Accords 73 Hurst, Sir Cecil 86 Helsinki Final Act 78 Henkin, Louis 14, 304, 400 Ibhawoh, B. 308 heritage, cultural 337–8 Ignatieff, Michael 304 Hessler, Kristen 265n8 Ikenberry, G. J. 60 Higgins, Rosalyn 63, 272, 394 Ikenberry, John 212 Hirsch, Moshe 19, 22, 24, 27–8 immunities 276 historical narrative 85, 148 impact assessment tools 385–6 historical wrongs 312 Impact of International Law on International Hittites, the 118, 122 Cooperation: Theoretical Perspectives, the Hobbes, Thomas 58, 130 (Benvenisti and Hirsch) 19, 24 Hoffman, Bruce 287 imperialism 131–3, 143–4 Hohfeld, Wesley 362 inclusion, non-state actors 393–5 Hongju Koh, Harold 18 Independent International Commission on Horn, David 138 Kosovo 2000 58 hospitality, ancient principle of 118–19, 120 India, ancient 116–17 Hountondji, Paulin 307 Indigenous and Tribal Peoples Convention No. 169 Howard Doctrine 204 of 1989 308 Howe, Geoffrey 84 Indigenous People of Africa Coordinating human rights 2, 7, 49, 111n9, 180, 184, 303–4; Committee 335 activists 313; America and 211, 216–17, 311; indigenous peoples: assimilation 340; authority attainments 304–6; correspondence 305–6; 334–5; autonomy 342; cultural heritage CPA reforms 231–2; crimes against 268; 337–8; and development 340–2; human cross-cultural dialogue 313–14; disciplinary rights 308, 331–43; and the International renewal 313–14; eclipses 306–12; economic, Labor Convention (No. 107) 332–3; land social, and cultural (ESC) rights 309–10, rights 332, 338–40; right to culture 331–43; 335–7; ethnic minority rights 309; and global self-determination 331, 332–5, 336; as states power matrixes 310–12; and globalization 333 310; Guiding Principles on Internal individual criminal liability 402 Displacement 71; historical wrongs 312; Innocent IV, Pope 126, 131 historiography 306–7; indigenous peoples Institut de Droit International 147, 149 308, 331–43; and international refugee law institutionalist theory 45, 47–8, 50 344; mechanisms 305; mental disability rights intellectual property rights (IPRs): in Africa 7, 309; non-state actor violators 305; origins 316–29; collective invention 324–5; colonial 306–7; and refugee law 347–8; and religion heritage in Africa 327–9; deﬁning novelty 175; rights consciousness 304; and RIL 249, 325–7; deﬁnition of patents 319–20;

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eurocentricity of patent system 320–7; global international governance 182; and public 318; imposition of Eurocentric IPR on Africa power 184–5, 187; regional/sectoral 316–18; the inventive process 323–5; local approaches 181; stability 190 influence on 317; origins of patent system International Convention on Civil and Political 318–19; public domain 325; secrecy regimes Rights and the International Convention on 325; and traditional knowledge 322–3 Economic, Social and Cultural Rights 333–4 Inter-American Commission on Human Rights International Court of Justice 64, 65, 87, 201, 70, 161 202–3, 276, 393, 398, 401, 403; election of Inter-American Court of Human Rights 70 judges 177; and the Iranian hostage crisis Inter-American Declaration on Human Rights 108–9; jurisdiction 58; jurisprudence 82; 74 rule of custom 83; Statute 68, 191, 398; and Inter-American System of Human Rights sustainable development 362, 363, 370 (IASHR) 154 International Covenant on Civil and Political interdisciplinary scholarship 13–15; defining 14; Rights (ICCPR) 309, 336 future developments 26–8; journals 18; lack international crime 6, 277–8; consequences of of dialogue 25–6; language 15; major works criminalization 274–7; definition 272–4, 15–22; progress towards 15–22; scholars 277–8; designations 268–9; draft code 270–2; 38–43; trends in 22–6 exclusion of defences 276; against humanity international administrative law 53 271; immunities 276; individual criminal International Association of Refugee Law Judges liability 402; jurisdiction over 274–5; offences (IARLJ) 349–50 against the peace and security of mankind International Atomic Energy Commission 270–2; retroactive prosecution 274; and RIL (IAEA) 226 249; state duties 275–6; statutory limitations International Commission on State Sovereignty 277 207 International Criminal Court (ICC) 2, 5–6, international community 3, 44–6, 45, 53, 189, 210, 215, 239, 244, 254, 276, 277; first 182, 392, 395; and the clash of civilizations cases 243; history 240; investigations 242; 45; conceptions of 46–7; definition 45; judges 244n11; jurisdiction 240–1, 241–2, fragmentation critique 50–3; institutionalist 273, 402; membership 242–3; research on conceptualization 45, 47–8; and law 46; 243–4; self-referrals 243; structure 242; treaty liberal conceptualization 45, 48–9; nature negotiations 240–1 of 8; need for unity 50–1; and nineteenth International Criminal Tribunal for Rwanda century legal doctrine 142; pluralism 53; (ICTR) 240, 242, 275 postmodernist conceptualization 45; International Criminal Tribunals for the Former postmodernist critique 49–50; realist Yugoslavia (ICTY) 240, 242, 272, 276, 403 perspective on 86 International Food and Agricultural international constitutional law 181, 183, Organization (FAO) 185 193–4; classical doctrine 183–4; compliance International Institute for Sustainable management 190–2; and consent 189; core Development 386 values 187–90; definition 182; democratic international institutions, and international legitimacy 186–7; enforcement techniques community 47–8 191–2; hierarchy 188–9; institutions 192–3; International Labor Convention (No. 107) legal order 188; and public power 184–5, 332–3, 340 187; regulation 190 International Labor Convention (No. 169) 333, international constitutional order 179–80, 180, 336, 341–2 193–4, 194; approaches to 180–3; classical International Law (Oppenheim) 167 doctrine 183–4; compliance management International Law and International Relations 190–2; and consent 189; core values 187–90; (Barker) 18 democratic legitimacy 186–7; enforcement International Law and International Relations techniques 191–2; formal 183–7; hierarchy (Simpson and Wheeler eds.) 24 188–9; institutions 192–3; legal approach International Law and International Relations 182–3; legal order 188; and multilevel (Simmons and Steinberg) 19–20

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International Law and International Relations: counterinsurgency 286–7; CPA reforms Bridging Theory and Practice (Biersteker, Spiro, 230–3; the Downing Street Memo 226; Sriram and Raffo eds.) 20 economic reforms 232; human rights “International law and international relations reforms 231–2; insurgents 233; invasion theory: a new generation of interdisciplinary 223; Iraqi Interim Government (IIG) 229, scholarship” (Slaughter, Tulumello and 230; justifications 223–9, 235–6, 397; the Wood) 15–16 occupation 229–33, 236; and preventive self- International law as Practitioner, The defence 227–9; Transitional Administrative (Wickremasinghe) 81 Law 232; treatment of detainees 233–5, International Law Commission (ILC) 64, 190, 236–7; UN Security Council resolutions 192, 240, 270–2, 274, 401–2, 405 223–7; weapons of mass destruction 224, international lawyers: efficacy 400–1; 225–6 impartiality 86–8; legal advice 86–8; role 81, Iron Rhine (Belgium vs. Netherlands) award 361, 88 363, 364, 367, 370 international legal system 3–4, 103–4, 104, “Is intervention ever justified?” (Marston) 94 105–6, 109–10 Islam 166, 167, 173, 174–5, 177, 287 International Military Tribunal 199–200, 240, Islamic fundamentalism 49, 167, 287, 291 242, 270, 274 Islamic law 168–9, 172, 174, 176 International Organization 17, 31n42 Israel 93, 272, 275, 397 international organizations: accountability 402; Israeli-Palestinian crisis 173 emergence of first 143; exercise of constitutional function 192–3, 194 Jain, S. C. 326 international recognition, doctrines 91–3 Janis, Mark 167, 169, 171, 172 international relations: borders with IL 13–14; Jellinek, Georg 150 and Hobbesian sovereigns 98; and IL practice Jennings, R. Y. 397 93–8; interdisciplinary scholarship 13–15; and Johannesburg Plan of Implementation ( JPOI) 358, the international legal system 103–4; journals 362, 365, 367 18; and political theory 61; scholars 31n34, Jones, Michael 24 33n50, 35n82, 41–2 Jones-Fay Report 234, 237 International Relations – The Path Not Taken: Journal of International Law and International Using International Law to Promote World Peace Relations 18, 21 and Security (Schoenbaum) 20 Judaism 177 “International relations theory, international law, judicial opinions 87 and the regime governing atrocities in internal judicialization 63 conflicts.” (Abbott) 17 jurisprudence 56, 82, 404–6 International Rules (Beck, Arend, and Vander jus cogens 188–9 Lugt) 15 Juss, S. 353 International Ship and Port Facility Security justice, principles of 61 Code 213 International Treaty on Plant Genetic Resources for Kagan, Robert 47 Food and Agriculture (Seed Treaty) 369 Kahn, Paul 212 International Whaling Commission 212 Kant, Immanuel 142, 148 interstitial norms 370–1 Keal, Paul 18 interventionism 94, 197 Kelley, Donald 135–6 Introduction to the History of the Law of Nations in Kelley, Judith 244 the East Indies (Alexandrowicz) 132 Kellogg-Briand Peace Pact 199, 201 Iran 167, 202–3 Kelsen, H. 63 Iran hostage crisis 64, 108–9 Kennedy, David 14, 50 Iraq war, first 5, 205–6 Kennedy, Duncan 161n4 Iraq war, second 1, 46, 48, 49, 191, 198, 200, Klabbers, Jan 14, 21, 25–6, 30n21, 31n32, 393 204, 206–7, 211, 222–3, 396–7; Coalition Klein, Pierre 23 Provisional Authority (CPA) 229–33; Koh, Harold 19, 22, 26, 27, 63, 106–7, 400–1

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Koskenniemi, Martti 14, 17, 21, 45, 50, 133, legal normativity, shifting boundaries of 367 398–400 Kosovo 44, 58, 206, 396–7 legal pacifism 198 Krasner, Stephen 60, 367 legal personality 393–5 Krisch, Nico 23 legal regimes, development of new 51–2 Kritsiotis, Dino 24 Legal Rules and International Society (Arend) 16 Ku, Charlotte 22 legal studies, fragmentation 406–7 Ku, Julian 243 legal theory 3, 55–7, 65–7; and collective Kuhn, Alfred 324 security 62; concept of 57–9; constitutive Kumm, Matthias 260–1 moments 59–65; fragmentation 406–7; and Kyoto Protocol 210, 213, 368–9 functionalism 61–2; narrative of progress 66–7; and Westphalian order 59–60 land rights, indigenous peoples 332, 338–40 Legality of the Threat or Use of Nuclear Weapons Latin American international law (LAIL) 4, 145, 176–7 154–5, 161; creole legal consciousness 155–7; legalization 17, 23, 27, 63–4, 294–302 nineteenth century foundations 157–9; legitimacy 3, 9, 48, 52, 395, 405; definition 295; sovereignty in 160; twentieth century 159–61 democratic 186–7; and robust international Latin American Scientific Congress 159 law (RIL) 250–1; vocabularies of 4; WTO Lauterpacht, Sir Hersch 63, 89, 91, 194n1 294–302 law. see also soft law: ancient 115; consensual legitimate expectation 16 101; and constitutionalism 65–6; customary Lehmkuhl, Dirk 31n42 72, 72–3, 75, 82–3, 102, 110n1, 360, 363, Lewis, C. 350–1 396–7; cybernetic modelling 104; definition liberal, international community 18, 55–6; fragmentation 64–5; general conceptualization 45 395–8; higher 58; influence of civil society liberal transnationalism 24 on 65; and international community 46; liberalism 45, 48–9, 49–50, 142, 345, 406 judicialization 63; jurisprudence 56; legality Libreville Agreement 327 of 58–9; legalization 63–4; legitimacy of 57, Libya, bombing of, 1986 84 58; monist approaches to 181–2; narrative of Lieber, Francis 143, 148 progress 66–7; natural 130, 131, 146–7; non- Lieber Code, the 143 consensual 101; norms 8–9, 56, 57–8; order Limits of International Law, The (Goldsmith and and the development of 57; power of 69; Posner) 19 precision 64; and religion 165; rule of custom Lincoln, Abraham 218 82–3; sources of 68–9, 188; and subjective Lippert, O. 318 rights 66; validity 57–9 Livy 118 Law and Legalization in Transnational Relations, Locke, John 67 a multidisciplinary volume (Brütsch and logic of appropriateness 37n123 Lehmkuhl) 31n42 logic of consequences 37n123 Law degrees 29n7 López Medina, Diego 162n12 law making mechanisms 395–8 Lowe, Vaughan 229, 360, 399–400 law of nations 126–9, 139–40, 145–6; Lubbers, R. 349 development of 129–34; and nineteenth Luhmann, Niklas 48, 51, 57 century 144; practice 128–9, 134–9 Lund, Joseph 163n13 law of presumption 64 Lusaka Agreement 327 Law of the Sea Convention 106 Luther, Martin 135 Lawrence, Thomas 129 Lutz, Ellen 23 Laycock, Douglas 169 League of Nations 144, 177, 199 Mably, Abbé de 139 Lebanon 397 McConnell, Michael 169 legal advice 86–8, 89–91, 95–8 Machlup, F. 319 legal consciousness 161n4 McNair, Lord Arnold 86–7 legal education 128, 134–7, 141, 145 Maine, Henry Sumner 148

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Malagasy Patent Rights Authority 327 Nigeria 306 Malaysia 381–3 Nijar, Gurdial 322 Marston, Geoffrey 83, 94 9/11 Commission Report 287, 288 Martens, Georg Friedrich von 126, 129, 130, nineteenth century, the: colonial expansion 139, 140, 146 143–4, 145; consolidation of state position Martin, Lisa 297–8 149–50; doctrines 145–8; formalism 150–2; Martinez Cobo Report 335 foundations of Latin American international Materials on International Law (Marston ed.) 83 law (LAIL) 157–9; historical narrative 148; Maturana, Humberto 105 interpretation of sovereignty 149–50, 150; Memoranda of Understanding 75, 77 and the law of nations 145; legal education Memorandum of Mr Bevin on Recognition of the 141, 145; and local experience 144; long and Chinese Communist Government 89–91 short 141–3; positivism 147; practice 148–50, Mendelson, A. 83 152; small country internationalist legalism mental disability rights 309 144–5; treaties 151; and war 151 Mexico 333, 336–7, 339–40 Nolte, Georg 18, 24 military assistance, examples of 95 non-binding instruments 70–1, 71–3, 73–4, Mill, James 146 75–6, 78–9 Millennium Development Goals 358 non-consensual law 101 mixed constitution, the 58 non-governmental organizations: accountability modernity 148 403–4; public functions 184; public power Mogadishu 207 186; and religion 175 Monroe Doctrine, the 145, 157 non-intervention 94, 179 Montivedeo Convention, the 333 Non-Proliferation of Nuclear Weapons treaty Mooney, Pat 323 218 morality 150, 171 non-refoulement 345, 347 Morgenthau, Hans 63, 109 non-state actors, participation 393–5 Morocco 327 norms 3, 250; binding 72; creation of 360–3; Morris, Madeline 23 interstitial 370–1; non-binding 70–1, 71–3, Muggah, Robert 22 73–4, 78–9; peremptory 188–9, 399; Multilateral Framework of Understanding on relationship to law 8–9, 56, 57–8; religious Resettlement 351 170, 175; and RIL 264; shifting boundaries multilateralism 63, 376 of 398; soft law 68–9, 76; successful 105; and multilevel international governance 182 sustainable development 360–3, 370–1; Third Murphy, S. 225 World 307–8 Muscat 93–8 North Sea Continental Shelf cases 82 Mutua, Makau 304, 313 Northwest Passage, the 102 Mutua, Wa 318 nuclear weapons 111n14, 176–7, 201, 218, 271 Nuclear Weapons case 201 Nagel, Lt. Colonel John A. 286 Nye, Joseph 220 national economy 61 Nzelibe, Jide 243 National Strategies for Sustainable Development 365 nationalism 142 obligations 188–9, 217–20, 219 Native Americans 132 O’Connell, Mary Ellen 24 natural law 130, 131, 146–7 Odysseus Network 352 neoconservatism 49 oil 98 neoliberalism 48 Oman 93–8 neutrality argument, the 168, 169 Oman: The Making of a Modern State (Townsend) New Haven school 62 98 new sovereigntists 6 Operation Praying Mantis 202–3 New Zealand 334 Oppenheim, Lassa 95, 115–16, 167 Nicaragua 202 order, and the development of law 57 Niezen, Ronald 338 Orentlicher, Diane 22, 23

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Organization for Security and Cooperation in practice 3; access to source material 84–5; Europe 73 analytical framework 81–3, 98–9; and Organization of American States (OAS) 70, 161 customary law 82–3; early modern period Organization of Islamic Conference (OIC) 128–9, 134–9; and IR theory 93–8; legal 174–5 advice 86–8; nineteenth century 148–50, “Origin and development of American 152; phenomenology 83–6; realist perspective international law” 159 on 85–6; rule of custom 82–3; British Ostry, Sylvia 302n18 recognition of Chinese communist Our Common Future (Brundtland Report) 356–7, government 87, 88, 89–93 358–9, 363, 365–6, 368, 380 Precis du Droit des Gens Moderne de l’Europe ownership, sense of 9 (Martens) 129, 140 Price, Richard 22, 24 pacifism 5, 198 primitive legal order 4 Pakistan 284 Principios del Derecho de Gentes (Bello) 157–8 Pan-American Congresses 157, 160 principle of nationalities 144–5 parallelism 47 prior informed consent (PIC) 325 Parry, Clive 86–7 Programme of Further Action to Implement Agenda participation 9, 393–5 21 357–8 patents 7, 317; African system 320; and protest coalitions 313 bio-cultural knowledge 320–3; collective Protocol Relating to the Status of Refugees 346 invention 324–5; defining novelty 325–7; public power 184–5, 186, 187 definition 319–20; eurocentricity of system Pufendorf, Samuel 130, 153n19 320–7; the inventive process 323–5; origins Pulp Mills on the River Uruguay case 362, 363, of system 318–19; threshold for legal 364, 367, 370 protection 321–2 punishment 107–9 peace 197–8 purposive systems 104–6 peace societies 142–3, 148–9 peremptory norms 188–9 Queller, Donald 137 Permanent Court of Arbitration 361 Permanent Court of International Justice 150, Raffo, Veronica 20, 25, 26 177, 215, 269, 274 Rajagopal, Balakrishnan 304, 313 persecution 346 Ratner, Stephen 26, 402–3 Peru 333 Rawls, J. 61 Petraeus, General David 286 Recognition of States and Governments 91–3 Phillimore, Sir Robert 147 recursion 104–5 Philosophy and Public Affairs 61 Reformation, the 135 piracy 269, 270, 273 refoulement 345 plant resources 320–3 refugee law 7, 344–5, 353; Agenda for pluralism 53 Protection 350–1; Common European political interference 65–6 Asylum System (CEAS) 352; contact politics of forms 395 committees 352; Convention Plus Process Politics of International Law (Reus-Smit ed.) 18, 351; definition of refugee status 345–6; EU 24 Qualification Directive 348; European Union Polybius 120 351–2, 353; fragmentation 347; Global positivism 130, 147, 187–8, 344, 345–7, 348, Consultations Process 350–1; human rights 394 and 344, 347–8; participatory approach 349, Posner, Eric A. 19, 23, 110n4 353; positivism and 344, 345–7, 348; right of postmodernism 45, 49–50 asylum 347; transnational approach 348–52 Povinelli, Elizabeth 338 regional inter-governmental organizations Powell, Colin 224 (RIGOs), and religion 174–5 power 253 regionalism 154, 159, 160, 161. see also Latin Power, Samantha 286 American international law (LAIL)

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Reisman, Michael 168, 205, 229 Rome and the Roman Empire 104, 117, 118, “The relative autonomy of international law or 120, 121, 122, 123, 124 the forgotten politics of interdisciplinarity,” Rome Statute of the International Criminal Court (Klabbers) 21 240–1, 242, 273–4, 276, 277 religion 4–5, 123–4, 165–6, 177; Rosand, Eric 290 accommodationist perspective 170–2; Rosanne-Young, Tomme 328n16 and domestic law 174; double-edged Rosenne, Shabtai 177 theory 172–4; extremism 173; freedom Roth, Kenneth 216 of 175; historical perspective 166–8; and Rotterdam Convention on Prior Informed humanitarian law 171; legal perspective Consent 73 176–7; and non-governmental organizations Rousseau, Jean Jacques 146 (NGOs) 175; norms 170, 175; and regional rule of custom 82–3 inter-governmental organizations (RIGOs) Rumsfeld, Donald 197, 198, 234 174–5; separationist perspective 168–70; Russian Federation, the 179–80 theoretical perspectives 168 religious law 168–9, 172, 174, 176 Sá Vianna, Manoel Álvaro de Souza 159–60, rendition 235 160, 163n27 Reparation for Injuries 393 Sabra and Shatila Inquiry 168, 169 Responsibilities of Transnational Corporations Sadat, Leila 23 and Other Business Enterprises with Regard Safran, David 324 to Human Rights 76 Saint-Pierre, Abbé de 146 responsibility to protect 207–8 Saint-Prest, Jean-Yves de 138 retroactive prosecution 274 sanctions 108 Reus-Smit, Christian 18, 21, 23 Sanders, David 332 Rhodesia 108 Sandholtz, Wayne 22 Rice, Condoleezza 289 Sands, P. 365 rights 48, 66 Saudi Arabia 95–6, 97 Rio Declaration on Environment and Saudi Arabia vs. Aramco 176 Development 70, 73, 357, 362–3, 365, 371, Sawell, Sara 286–7 390n21 Scheffer, David 233, 243 Rio Earth Summit 355, 357, 358, 369, 380 Scheinin, Martin 339 robust international law (RIL) 6, 249–50; Schlesinger Report 234, 237 accountability 256–7, 258; authority 249, Schmitt, C. 63 251–4, 258–60; benefits of 251–4; and Schoenbaum, Thomas J. 20, 24, 34n80 bureaucratic distance 256–7; church and scholars: defining 14; hybrid 42–3; IL 30n30, state, separation of 168–70; compatibility 32n49, 34n81, 38–40; IR 31n34, 33n50, with constitutional democracy 254–60; 35n82, 41–2; practitioners 43 and constitutional democracy 249–65; scholarship 1, 2–3 and constitutional supremacy 262–3; and Scott, James Brown 131, 132 constitutionalism 261–5; and democratic Second World War 62 authorization 258–60; and the democratic secular positivism 168–70 deficit 256–7; and exclusive accountability secularization 166–8, 172, 173–4 255–6; impact on constitutional structures security, institutionalist conceptualization 48 263–5; and the rule of law 253–4; sanctions self-defence 5, 84, 200–5; anticipatory 203, 249; and self-governance 257–8, 259–60, 227–9, 236, 397; the Caroline criteria 227–9; 261; and sovereignty 266n15; and subsidiarity preventive 227–9; and terrorism 282 260–1 self-determination 56, 258, 259, 331, 332, 336; rogue states 45 and autonomy 334–5; definition 335; and the Role of Law in International Politics, The International Labor Convention (No. 107) (Byers ed.) 17–18 332–3; as state sovereignty 333–4 Roman law 111n9, 119, 130, 134, 136, self-ordering of regimes 51–2 148 Sen, Amartya 304

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Senegal 386 law (RIL) 266n15; and self-determination separation of powers 267n23 333–4; supranational 185; and Westphalian Setear, John 23 order 59–60 sexual minorities 309 Soviet Union 95, 97, 102 Shacknove, A. E. 349 space activities 73, 214 Shihata, Ibrahim 172 Special Court for Sierra Leone 276–7, 277 Sib Agreement, 1920 95, 96–8 Special Tribunal for Lebanon 277 Simmons, Beth A. 19–20, 25, 243–4 Spiro, Peter J. 20, 21, 24 Simon, Jeffrey D. 283–4 Spiropoulos, Jean 270 Simpson, Gerry 14, 24, 26 Spivak, Gayatri 343n1 Sinclair, Sir Ian 88 Sriram, Chandra Lekha 20, 26, 27 Singapore Ministerial Declaration 380–1 Srpska Republic 185 Sino-British Treaty, 1943 91 Standard Minimum Rules for the Treatment of Six livres de la republique (Bodin) 183 Prisoners 70 Skinner, Quentin 133 state, the 8; accountability 403; analysis of slash and burn farming techniques 340 practice 86–8; analytical framework 85; in Slaughter, Anne-Marie 13, 15–16, 19, 22, 23, the ancient world 116–18, 121, 125; arbitrary 26, 28, 36n107, 48–9, 349 interests of 149; church and state, separation slavery 312 of 168–70; competence 185–6, 187; criteria Smith, H. A. 86, 87 for recognition as 185–6; and customary law Snidal, Duncan 23 82–3; definition 88, 103, 184; democratic Snyder, Jack 243 legitimacy 186–7; distinction of interest social contract, the 56 98–9; duties regarding international crime socialism 62 275–6; emergence of modern 128, 129, sociological theory, and legal practice 63 142; erosion of 184; Goldsmith and Posner’s soft law 3, 23, 63, 78–9, 308, 348, 363, 365–7, conception of “interest” 19; interests 34n80; 398–9; adoption 75–7; adoption as hard law internationalization of 63; law making 187–8; 74–5; compliance 77–8; and custom 72, 75; legal conscience 82; legal order 82; liberal definition 69–71; distinction between soft and conceptualization 48–9; monopoly on use of hard law 68–9; enforcement 75–6; and the force 46; nineteenth century consolidation of interpretation of obligations 74; and non- 149–50; obligations 85, 87; officials beliefs binding instruments 70–1, 71–3, 73–4, 75–6, 102; public power 184–5; punishment 107–9; 78–9; and non-state actors 70; norms 68–9, purposes of 61; realist perspective on 86; 76, 78; primary 70; private 76–7; sanctions responsibility 190; and the rule of custom 71; secondary 70; state use of 75–7; texts 82–3; secrets 85; and self-determination 69–71, 72; transition into customary law 333–5; soft law compliance 77–8; use of 72–3; and treaties 69, 70, 70–1, 73, 77 soft law 75–7 soft power 3, 220, 221, 291 Statute of the Special Tribunal for Lebanon 276 Somalia 1, 206, 397 Steiger, Heinhard 166 Sorensen, M. 82 Steinberg, Richard A. 19–20, 25 South Africa 108, 306, 312, 314, 315n13, 327 Stimson doctrine, the 92 Southern Rhodesia 185 Stockholm Declaration on the Human Environment sovereign autonomy 63 73, 356, 362, 368, 371 sovereign equality 120, 149, 394; equality 23 strategic essentialism 331–2 sovereigns 58, 98 Stumpf, Christoph 167 sovereignty 198; absolute 183; ancient lack of subsidiarity 6, 260–1 concept 116; erosion of 184; as foundation Suchman, Marc 300 of international law 147; humanitarian supranational structures 185 interventions and 2; importance of 4; in LAIL sustainable development 7–8, 355–6, 371–2; 160; liberal conceptualization 49; limiting 56; as a customary principle 360; definition 356, nineteenth century interpretation of 149–50, 358–9; and the Doha Development Agenda 150; popular 183–4; and robust international 386–8; environmental protection 2, 73,

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361–3, 364–5, 384–5; impact assessment tools trade-related, market friendly (TREMF) human 385–6; as interstitial norm 370–1; legal status rights 310 8, 359–71; and norm-creation 360–3; and Trail Smelter principle 362 opinio juris 365–7; policy debates 356–8; transjudicial networks 49 as policy objective 367–70, 371; soft law transnational corporations, accountability 402–3 principles 365–7; state practice 363–5; and transnational networks 345, 349–52 trade 378–9; treaties on 367–9; and the treaties 70–1, 101, 265n3, 367, 395–6; World Trade Organization 375, 379–88 American attitudes towards 215–17, 218, Sweet, Alec Stone 22 263–4; in the ancient world 120–3; binding systems analysis 103–4, 109–10; coercive nature of 101–2; creation process 23; and systems 106–9; purposive systems 104–6; declarations 73; early modern period 138; self-organization 105–6 human rights 216–17; ICC negotiations 240–1; nineteenth century 151; non-self- Taft, William Howard, IV 227, 228 executing 215–16; preamble 389n8; self- Taguba Report 234 executing 216; and soft law 69, 70, 70–1, tariffs 376, 377 73, 77; on sustainable development 367–9 terminology 24, 101–3, 395 treaty crimes 241–2, 273 territorial integrity 200 Treaty on European Union 366 territorial rights 150–1 Tuck, Richard 133 territoriality 48 Tulumello, Andrew 15–16 terrorism 6, 191, 291; causes of 282; civil Turkey 166 suits 290–1; counterinsurgency 286–7, Turkish Federated Republic of Northern 291; definition 273, 281–3; definition as Cyprus 185 international crime 270; financing 213–14, 290; globalization of 284; ideological struggle Uganda 243 against 287; Islamic 49; military model of UN Convention to Combat Desertification counter terrorism 284–5; the new terrorism and Drought, especially in Africa (UNCCD) 283–6; prevention 2, 287–9; prosecution and 369 punishment 289; right to use force against UN Framework Convention on Climate Change 203; September 11 attacks 46, 47, 49, 50, (UN FCCC) 368–9 167, 180, 284; state 282; threat 213; UN UNESCO Convention for the Safeguarding of antiterrorist conventions 282–3, 289; UN Intangible Cultural Heritage 337, 338 Security Council resolutions 289–90; UNESCO Declaration on Cultural Cooperation weapons of mass destruction 286 336 Teubner, Gunther 51 UNHCR 346–7, 348, 350–1, 352, 353 Thatcher, Margaret 84 UNIDROIT 74–5 Third World Approaches to International Law unilateralism 4, 5, 205, 211 155 United Nations 62, 69–70, 167, 175; Thomas, Scott 170 anniversary summit, 2005 53; antiterrorist Thucydides 60 conventions 282–3, 289; Counter-Terrorism Tönnies, Ferdinand 45 Committee (CTC) 289–90; criminal tribunals Toope, Stephen 22, 31n42, 229 276–7; and ethnic minority rights 309; and Tordesillas, Treaty of, 1494 60 foundation of the ICC 240; General Toronto, University of 18 Assembly Special Session on Sustainable torture 210, 216–17, 218, 219, 235, 236–7, 289 Development 356; and international crime Townsend, John 98 269; International Law Commission (ILC) 6, trade disputes 377–8 188–9; and refugee law 347; Report on trade law 8, 376–7, 378–9, 385–6. see also Indigenous Peoples and their Relationship World Trade Organization (WTO) to Land 339, 340; and the right to culture trade legalization 294–302 335–7; and sustainable development 365–6 Trademark Registration Treaty 327 United Nations Charter 46, 176, 181, 197, 200; trademarks 317, 327 Article 2(4) 200, 202; Article 25 214; Article

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51 201, 202, 203; Chapter VII 205, 206, 208, 143; climate change policy 24, 213; 396 Constitution 211, 215, 217, 251, 255, 256, United Nations Commission for Sustainable 264; Container Security Initiative 213; Development (UN CSD) 357–8, 364, 368 counterinsurgency operations 286–7; counter United Nations Commission on Human Rights terrorism 284–5; definition of terrorism 283; 305 Detainee TreatmentAct 288; engagement United Nations Conference on Environment with international law 210–21; and exclusive and Development (UNCED) 355, 357, 358, accountability 255, 256; external influence 369, 380 214; extreme Islamist version of 287; Foreign United Nations Conference on the Human Corrupt Practices Act (FCPA) 212; Foreign Environment (UNCHE) 356 Intelligence Surveillance Act 288; foreign United Nations Conference on Trade and policy 212–14; Foreign Sovereign Immunities Development (UNCTAD) 325–6 Act 291; ghost detainees program 234; United Nations Congress on the Prevention of human rights 211, 311; and human rights Crime and Treatment 70 treaties 216–17; hypocracy of 211; and the United Nations Convention on Biological Diversity ICC 5, 215, 244; impact assessment tools (UNCBD) 357, 364 386; interdisciplinary scholarship 24; and United Nations Convention to Combat international community 46–7; international Desertification and Drought (UNCCD) 357, 364 recognition doctrine 92; invasion of Iraq 223; United Nations Environment Programme 356 and the Iranian hostage crisis 64, 108–9; United Nations Framework Convention on Climate justification of invasion of Iraq 211, 223–9, Change (UN FCCC) 357, 362, 363, 366 397; and LAIL 160; legal justifications 219; United Nations Human Rights Council 305, legal obligations 217–20; legal realism 62–3; 308, 334, 342 Marine Mammal Protection Act, 1972 212; United Nations Security Council 5, 175, Military Commissions Act 285; National 184, 193, 396; authorization of use of force Defense Strategy, 2005 212; National 205–8; and CPA reforms 231–2; enforcement Intelligence Estimate, 2007 284; National measures 191–2; humanitarian interventions Security Agency 288; National Security 207–8; and the ICC 241; and international Strategy, 2002 203–4, 213, 227; and the crime 272; interpretation of resolutions Northwest Passage 102; nuclear weapons 223–7; and Oman 95; power 69; remit 189; 111n14; occupation of Iraq 229–33; Office Resolution 660 224–5; Resolution 678 205, of Legal Counsel 235; patent law 326–7; 206–7, 224–5, 227; Resolution 686 225; Patents Act 319, 326; policy preferences Resolution 687 224–5; Resolution 1373 212–14, 220; and preventive self-defence 213–14, 289–90, 290, 396; Resolution 227–9; Proliferation Security Initiative 213; 1390 290; Resolution 1441 206–7, 224, rejection of legal approaches 213; the religious 225–6, 227; Resolution 1483 229–30, 231; right 167; resistance to external influence Resolution 1540 214, 290, 396; Resolution 214–17, 220–1; and the Rio Declaration 70; 1546 231; role enhanced 48; and the second and robust international law (RIL) 250–1, Iraq war 223, 223–7 263–4; rule of law 218; September 11 United States Diplomatic and Consular Staff in terrorist attacks 46, 47, 49, 50, 167, 180, Tehran 176 284; space policy 214; Supreme Court 217, United States Hegemony and the Foundations of 285; tariffs 377; terrorist threat to 213; and International Law (Arend and Nolte) 18 torture 216–17, 218, 219, 235, 236–7, United States of America 1; acceptance of 289; treatment of detainees 233–5, 236–7, universal jurisdiction 275; anti-terrorism 288–9; and BRITISH recognition of Chinese measures 288–9; approach to international communist government 91, 93; unilateralism law 211; attack on Iranian oil installations 4, 5, 211; use of IL 5; U.S.–Shrimp Case 202–3; attitude to treaties 215–17, 218, 381–3, 384; withdrawal from Anti-Ballistic 263–4; bombing of Libya, 1986 84; Central Missile Treaty 219; withdrawal from legal Intelligence Agency (CIA) 234, 235, 288; obligations 219; withdrawal from Vienna citizens abroad 108; civil suits 291; Civil War Convention on Consular Relations 219

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United States of America vs. Iran, 1979 64 Wheaton, Henry 128, 148, 157 Universal Declaration of Human Rights 73, 74, Wheeler, Nicholas 24, 26 305, 335–6, 341–2, 347 Wickremasinghe, C. 81 universal jurisdiction 275 Wicquefort, Abraham de 138 universal monarchy 139 will to civilization 156, 163n15 universalism 132 Wingate, Sir Ronald 96–8 Universally Condemned Offences 272–3 Wippman, David 23, 228 UNMOVIC 226 Wolff, Christian von 127, 130, 139 Uruguay 362 women’s rights 308 Uruguay Round, the 299, 300 Wood, Stepan 15–16 U.S. Army/Marine Corps Counterinsurgency Field Woolsey, Theodore 147, 150 Manual 286 Working Group on Indigenous Populations 334 U.S.–Shrimp Case 381–3, 384 World Bank Operational Standards 73–4 World Commission on the Environment and Vallat, Francis 93, 95–6 Development (WCED) 356–7, 380 Varela, Francisco 105 World Court 191 Vattel, Emmerich de 130, 139, 144, 146 world federalism 180 Versailles Peace Treaty 199 World Resources Institute 322–3 Vienna Convention of Diplomatic Relations 64 World Summit for Sustainable Development Vienna Convention on Consular Relations 219 (WSSD) 356, 358, 379 Vienna Convention on the Law of Treaties 265n3, World Trade Organization (WTO) 2, 6–7, 367 64, 181, 193; agreements 377, 378; balance Vinjamuri, Leslie 243 of power within 299; Brazil-Retreated violence 1, 200 Tires 384–5; creation 294, 376–7, 390n35; Vitoria 129, 131, 132, 134, 139 criticisms of 295–6; delegation of powers Vladimiri, Paulus 131 295; de-legitimization 297–300; Dispute voluntarism 140 Settlement Body 378; dispute settlement Voluntary Principles for Security and Human system 295, 377–8, 381–5; and the Doha Rights in the Extractive Industries 76 Development Agenda 387–8; the Enabling Clause 384; E.U.–Asbestos 385; E.U.–Tariff Wade, Peter 333, 338 Preferences Case 383–4; goals 296; input war. see also force, use of: in the ancient world legitimacy 295–6, 301; institutional 123–4; as constitutional moments 60; reform 298–9; legalization 294–7, 297–8; criminilization of 199–200; eighteenth legitimacy 294–302; mandate 299, 301, 377; century 129; just 124, 151; justiﬁcation of membership 298–9, 376; negotiation process 208; nineteenth century 151; role of 197–9 reform 301; output legitimacy 296–7, 301; war on terror 6, 46, 198, 203, 210, 236–7 reform 300–2; role 300–1; rule-making Ward, C. A. 148 system 298, 301; rules 300; sociological Washington Semiconductor Treaty 328n8 legitimacy 297; specialized and specialist weapons of mass destruction 189, 204, 213, 214, knowledge 296; substantive values 296, 301; 224, 225, 286 and sustainable development 375, 379–88; Webster, Daniel 201 U.S.–Shrimp Case 381–3, 384; WTO Wedgwood, R. 228 Agreement Preamble 380–1, 381–2 Weeramantry, Christopher 171, 176–7, 360–1, 370 Yahoo! 52 Weil, Prosper 398 Yale school 62–3 Weis, Paul 353n2 Yoo, John 228, 255 Westlake, J. 148 Westphalian system and the Peace of Westphalia Zamora, Daniel 22 59–60, 127, 130, 148, 166, 168, 170 Zeleza, Tiyambe 307 Wet, Erika de 182 Zimbabwe 312, 315n13 Wheatley, S. 238n15 Zion, James 336

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