States and Networks in the Formation of International Law Moria Paz! Abstract The current struggle of the international legal system to address extremist non-state actors highlights the general inability of our legal institutions to engage with transnational ethnic/religious groups that take on political stances, whether violent or not. Dispersed communities that maintain a group political allegiance but are uninterested in the system of territory and citizenship appear essentially incomprehensible within an international order that is built on the foundation of state sovereignty. This paper investigates the operations and political capabilities of cross-border ethnic/religious networks that generate a group identity and political agenda through cultural institutions, and also traces when and how such networks were excluded from formal status in international law. Using an in-depth study of one organization based on a network of religious schools, I show that these entities can supply many of the same services to their members that a territorial state provides to its citizens. I investigate the consolidation of the state-based legal system at the conclusion of World War I, with a particular focus on the Minorities Treaties as a legal regime intended to address the needs of minority ethnic/religious populations within the new order then emerging. I argue that through these treaties and subsequent case law on their implementation, international law as a discipline played a decisive role in legitimating the primacy of territorial states and casting the network form as deviant. The limited and poorly-defined legal category of minority rights displaced the network model from visibility, leaving international law with few practical structures for interacting with minority communities. In particular, transnational ethnic/religious groups lack the required legal structures to communicate their form of identity to others, and neither the scholars nor the institutions of international law have the legal language or conceptual tools needed to engage with such entities as coherent political forms, to recognize the place they occupy on the international stage, and to understand their complex relationships with state power. ! Lecturer, Stanford Law School Moria Paz Introduction Our modern international legal regime recognizes two main classes of actors: states, characterized by territorial integrity and political independence, and the citizens of states, who, since 1948, have been bearers of direct rights of action in the international realm.1 This regime consolidates the experience of the individual into the exercise of legal entitlements within the framework of the state, and vests the political authority of a collectivity in its ability to establish exclusive physical occupation of land (self- determination). Where does this construction leave cross-border ethnic and/or religious networks that are explicitly political, but that do not pursue their agenda through either the mechanism of individual human rights or the drive for independent territory? International law lacks an intermediate form reflecting such collectivities, and therefore does not offer the structures and concepts needed to grasp and interact with them. Indeed, how are we to understand a people that makes claims on the grounds of its nationality, and asks for certain nationally-based collective cultural or political rights, but rejects the conflation of nationality with the state and is uninterested in the system of territory and citizenship? Sayyid Qutb, the Egyptian educator and intellectual godfather of the Islamists and Al Qaeda, has written that “a Muslim has no nationality except his belief." He writes with disdain about “the nationality determined by a government” or “the flag of a country,” exhorting his followers instead to “live” in and “defend” a “homeland” that is actually “not a piece of land.”2 Similarly, Rabbi Samson Raphael Hirsch, one of the fathers of Jewish Neo-Orthodoxy, wrote that the Jews are a “people transformed into a Nation through the Torah [the Bible] and for the Torah … This people had become a nation before it possessed land and state.” Jews following this view do not speak the language of legal rights but that of obligations, and they hold it as their collective duty “to preserve the teaching of the Torah” above all else.3 What is the 1 The intermediate status of the “minority” offers an uncertain standing in international law, and is addressed in this article in some depth. 2 http://www.islaam.com/Article.aspx?id=257. See also on the same point, Sayed Khatab, Arabism and Islamism in Sayyid Qutb’s Thought on Nationalism, 94 THE MUSLIM WORLD (April 2004). 3 S. R. Hirsch, THE TIMELESS TORAH – AN ANTHOLOGY OF THE WRITINGS OF RABBI SAMSON RAPHAEL HIRSCH (Philipp Feldheim ed., 1996) 502-503. ! "! Moria Paz political import of nationalism institutionalized around a religious text or other “cultural” institution, rather than territorial governing bodies? Similar questions arise in considering a range of ethnic and/or religious groups whose internal loyalties may supersede allegiance to any territorial states of residence. Using what legal categories are we to understand the Kurds, the Roma, or the Amish? And what is the relationship between a national minority and a transnational ethnic-religious network? This article traces the legal developments and political history that brought us to this state of confusion. I do so by telling two separate, but interwoven, stories. First, I explore the political potential of the cross-border network form through a detailed analysis of one particular network that flourished between 1860 and 1920, the era immediately preceding the consolidation of our modern state-based legal and political system. This group utilized a far-flung network of private schools to organize its ethnic/religious political self. I offer a descriptive analysis of how transnational private-religious schools can form the institutional basis of a political practice, and investigate the complicated ways in which this political form interacted with state governing structures across time and space. Second, I examine the consolidation of the state-based legal system at the conclusion of World War I, exploring the processes through which statesmen, international lawyers, scholars and judges mobilized the language and power of the law to enshrine the state as the only legitimate form of group political power, thereby excluding networks from formal participation in the new global system and, indeed, from the consciousness of international law as a discipline. The two stories merge in a surprising way, as the network studied in the first part of the paper paradoxically played an important role in the lawmaking processes described in the second part. I investigate, in particular, the legal category of the “minority” as a group with special protections for the maintenance of a separate collective cultural identity within the state frame. This construction emerged at the Paris Peace Conference at the end of World War I and was systematized by the Permanent Court of International Justice in the inter war period. The structure of a “minority” was primarily intended as a means of stabilizing the new states of Eastern Europe, whose borders did not conform precisely to ethnic and ! #! Moria Paz national distributions. After World War II, this poorly-defined legal category was largely abandoned, both in practice and in legal scholarship, in favor of individual human rights, but it returned to prominence in the 1990s following the breakup of the Soviet Union and later of Yugoslavia.4 It is the closest international law has come to providing a legal category that might provide a mechanism for understanding and interacting with dispersed ethnic/religious networks as a political form, and indeed it was initially adopted in the Minorities Treaties in part as a result of aggressive lobbying by the network that is studied in this paper. Yet the Minorities system was predicated on the same assumptions underlying the territorial state system, and ultimately was concerned primarily with those minorities that might foment a separatist national movement or harbor loyalty to an outside state. Because the Treaties and the Permanent Court organized the minority as an autonomous cultural status placed within the state frame, and thus veiled from the prerogative of international law, they did not engage with the possibility of cross-border networks as an independent political stance. The network studied in this paper is the Alliance Israélite Universelle (the Alliance), a Jewish group that completely rejected the idea of a Jewish state and instead explicitly sought to create a transnational network organization. The French Jewish founders of the Alliance entertained no territorial aspirations and were virulent foes of political Zionism, the modern Jewish movement for territorial autonomy. Instead, the Alliance sought to wield political power through a cross-border network of private education. The group reached the acme of its operations and political influence in the period between 1880 and 1920, when it operated a vast network of Jewish schools in communities spread across fifteen territories in three continents. A study of the Alliance is valuable for understanding both the operation of schooling networks and the political functions of ethnic/religious networks in general, not only because it vividly demonstrates the way in which a people can use private education