The Uncertainty of Sovereignty and the Sovereignty of Uncertainty

The following is  a reaction to a piece I read recently titled “Reading Dissidence/Writing the Discipline: Crisis and the Question of Sovereignty in International Studies,” written by Richard K. Ashley and R.B.J. Walker and published at International Studies Quarterly, 34 (1990) 367-416, in which I discuss the relationship between international law, uncertainty and sovereignty.  All parenthetical citations are to that article.

International lawyers are stuck. They are bound between their own aspirations for the future of the international legal project and the historical structure of international legal argument, which hinders an imaginative discourse by placing a premium on order and simplicity. Sovereignty, which occupies a position central to international legal argument, represents a useful heuristic if the goal is to cordon off international law from other disciplines and create within international law something approaching a scientific system, but by presuming that the “question of sovereignty” has already been answered international lawyers undermine the prospects of international law as a method of global governance. If the aspirations of international lawyers are to be realized, then they must eschew presumptions and embrace the uncertainty of sovereignty. Every “historical figuration of sovereign presence” should be regarded as precisely that, “a question, a problem, a contingent political effect whose production, variations, and possible undoing merit the most rigorous analysis.” (See page 368). Nothing should be presumed. Going further, it is only through recognition that uncertainty itself merits its own position in international legal argument, its own sovereignty, that international law can “traverse institutional limitations, expose questions and difficulties and explore political possibilities hitherto forgotten or deferred.” (See page 376).

Ashley and Walker address these and other proscriptions in their searching article Reading Dissidence/Writing the Discipline: Crisis and the Question of Sovereignty in International Studies. Central to their methodology is the notion of “dissident thought,” which “issu[es] from the margins” and “accentuate[s] and make[s] more evident a sense of crisis” in the discipline of international studies. (See page 375). Dissident thought creates this crisis by questioning the discipline’s underlying assumptions, i.e. sovereignty. That a crisis exists in international law, and that sovereignty is the source of such crisis, is a position shared by many international lawyers. To unbind themselves and in so doing emancipate the discipline, Ashley and Walker’s advice to international lawyers is clear: Question everything. It is only through a realization that the discipline has always been “paradoxically open to a proliferation of mutually destabilizing readings” and that the textual history of international law has “never been a territory of unequivocal and continuous meaning” that international lawyers may attain the perspective necessary to imagine alternative futures for themselves and for the discipline. (See page 387).

International lawyers bemoan the limits of international law, but they have no one but themselves to blame. By accepting as presumptively valid the historical “sovereign narrative” of international law they internalize a structure that is itself a limitation on their freedom of action. As a discipline international law has never been settled. Its subjects, objects, aspirations and aims have been in constant flux, and this is not likely to change. Dissident thought challenging inherited structures should be welcomed and, if constructive, embraced. As Ashley and Walker conclude in their article, we must put aside self-limitation and “get on with the difficult and discipline labors of thought in the struggle for freedom.” (See page 414).

 

New working paper by Prof. Antonia Chayes titled “Chapter VII 1/2 of the UN Charter”

Prof. Antonia Chayes has produced a new piece titled “Chapter VII 1/2 of the UN Charter,” which addresses the responsibilities that may arise for victorious states in the aftermath of successful military intervention.  This issue has become especially salient of late given the interventions in Libya and Cote D’Ivoire.  Prof. Chayes concludes that the dominant motivation toward a responsibility for post-conflict reconstruction is nether legal, nor moral, but instead resides in the practical necessities of self-protection.  Here’s a snippet (footnotes omitted):

“I argue here that no legal requirement exists, and while perhaps there should be a moral imperative, no such norm is yet established. Although official language and commentary may imply an obligation to reconstruct, the reality seems more instrumental to self‐interested ends. Attempts have been made to impose a moral requirement by both philosophers and statesmen, as discussed below. But the results in actual situations have been half‐hearted, misguided or woefully short‐term. Nevertheless some effort at post conflict rebuilding now does seem to be accepted as a necessary part of engaging in military action. My conclusion is that the dominant motivation is not altruistic, but self‐protective. A nation that engages in war to be rid of an assumed threat will take measures to assure that the threat will not return. The international community has an interest in preventing violence from recurring or spreading especially when states have invested “blood and treasure” in ending the violence. Festering internal conflict can lead to threats to a widening area, as the Great Lakes region of Africa and the Balkans have shown, as well as the historic case of post World War I Europe. Even when support for military intervention has been lacking, support does develop—although unevenly‐‐ for assisting social and physical reconstruction. I call this Chapter VII 1/2, as a parallel to peacekeeping, known as chapter VI 1/2, since that concept was also nowhere explicit in the UN Charter.”

This paper will be part of the ASIL “works-in-progress” workshop taking place at the Fletcher School from 9 AM to 3 PM on Friday, October 28th in the Chase Center.  A full-version of the paper is posted at: http://fletcher.tufts.edu/FILA/Discussion.

 

A Few Interesting Follow-Ups to the Qaddafi Post

For those who are interested in further reading:

Commentary from Professor Doebbler over at JURIST on the “extra-judicial killing” of Qaddafi and the dangerous implications that it might have: Curtis Doebbler, The Rule of Law and the Extrajudicial Killing of Muammar Gaddafi, JURIST – Forum, Oct. 24, 2011, http://jurist.org/forum/2011/10/curtis-doebbler-gaddafi-killing.php; and

News reports of action taken by a legal team in Sri Lanka to protect Saif Qaddafi from attack: http://www.srilankaguardian.org/2011/10/international-legal-team-demands.html

International Law and Vengeance

As videos of Muammar Qaddafi’s bloody demise make their way through cyberspace, the world is left to wonder: What means this vengeance?  The question for international lawyers is: What’s law got to do with it?

To be sure Qaddafi is not a sympathetic character.  This is a man who ordered his own people exterminated like “rats.”  If anyone deserved to die a bloody, violent, painful, savage and humiliating death surely it was him.  It wasn’t long ago that we were saying the same thing about Osama bin Laden.  But here’s the problem with this position: We are supposed to be beyond it.  While U.S. and NATO involvement in the killing of Qaddafi is murky, what appears clear is that they were serving as a de facto air force for the Libyan rebels.  Such action pushes far past what could reasonably be interpreted out of the U.N. Security Council resolutions authorizing military involvement in Libya.  Moreover, as the videos of a bloodied, battered and defenseless—but still alive—Qaddafi show, he had been rendered helpless far before he was killed.  Under the Geneva Conventions and the laws of war his killing was clearly illegal.

Our fidelity is supposed to be to the rule of law, not to the law of the jungle.  As President Obama said in a speech at West Point in May of 2010, we should promote universal rights, including the right to a fair trial, “even when it’s hard.”  Despite this avowed policy, denouncements of the bin Laden and Qaddafi killings have been conspicuously absent from the public discourse.  Advocating for due process as opposed to a quick execution of someone as despicable as either Qaddafi or bin Laden (or Anwar al-Awlaki for that matter) is no doubt extremely difficult for the people who actually have to make those decisions.  They have lots of angles to consider, not least of which is the issue of exposure.  Recall that until the Libyan intervention in March, Qaddafi had been a useful ally in the War on Terror.  Who knows what ugly details would have emerged regarding the modalities of his cooperation had he been given the platform of a public hearing.  For his part, bin Laden probably would have been all too happy to describe the support he received from the United States during the Russian-Afghan war in the 1980’s.  But that’s the point.  It’s exactly in the face of uncertainty and risk that the we should all reaffirm our commitment to the bedrock values that we so readily espouse under less trying circumstances.

The Qaddafi and bin Laden episodes are not the first time that our values have been threatened by bloodlust.  Acting as defense attorney to the alleged perpetrators of the Boston Massacre in 1770, John Adams, future president and erstwhile patriot took up the unenviable task of defending the indefensible amidst public calls for vengeance.  In doing so he found refuge in the law.  “The law no passion can disturb,” he said.  “’Tis void of desire and fear, lust and anger.”  Lest Adams’ words be cast aside as mere zealous representation on behalf of his clients, he reiterated that the law treats both sides equally.  “On the one hand,” Adams said “law is inexorable to the cries and lamentations of the prisoners; on the other it is deaf…to the clamors of the populace.”  The acquittal of the accused reaffirmed colonial hold on the moral high ground and hastened the American declaration of independence from tyrannical rule.

The legacy of the Nuremberg and Tokyo military tribunals in the aftermath of World War II confirm international commitment to the rule of law.  Would it have been easier to summarily execute suspected Nazi war criminals?  Did they deserve it?  Churchill certainly thought so, yet Roosevelt held firm.  In the wake of the most destructive war in human history, the international community showed constraint in its thirst for vengeance.

Such prevarications may be cast aside as irrelevant.  The common refrain that “the world is better off without” individuals such as Qaddafi or bin Laden is difficult to counter.  These were horrible men.  Furthermore, it is often asked: Wouldn’t any trial be unnecessary when the guilt of the accused is so obvious?  This is not just a question about who they were, it’s also a question about who we are.  When we circumvent the rule law in the interests of expediency, we diminish ourselves and betray our values.  Between summary execution and show trials there is room for justice.

And what of peace?  Can we honestly say that through vengeance the Libyan people have improved their lot?  Would the transition from bloody civil war to good governance and enduring peace not have been better served by a public trial of the man most responsible for untold suffering?  If experience has taught us anything it is that the transition from war to peace is a long and difficult one.  The killing of Qaddafi may signal a new day in Libya, but the prospects of that new day are not exactly clear.  Violence generally begets more violence, not peace.  At some point one cycle has to stop so another can begin.  It is possible that what comes next in Libya may be worse than what came before.

Discussion Paper: “The Concept of International Law” by John Linarelli

We have posted a new discussion paper on international law and moral philosophy: “The Concept of International Law” by John Linarelli. This very thought provoking piece will be presented an ASIL International Legal Theory Interest Group panel at the Annual ASIL Meeting later this week. Linarelli offers a fresh take on what the enterprise of analytical jurisprudence can do for international law. He examines connected concepts of “normativity”, “validity” and “justice” and puts forth, for discussion, a contractualist account of global justice.

 

The paper can be found at:- http://fletcher.tufts.edu/FILA/pdf/FILADiscussionPaperNo0209.pdf. As always, comments are welcome.

What International Law can learn from the Renaissance

A very interesting discussion on treaty interpretation is ongoing at Opinio Juris, in particular, over textual vs contextual interpretation and the use of travaux preparatoires of treaties. The discussion has, so far, culminated in an intriguing post by Duncan Hollis, “Art and the Auto-Interpretation of Treaties”. (See http://opiniojuris.org/2009/03/03/art-and-auto-interpretation-of-treaties/)

 

He asks, “(s)imply put, I wonder what the artistic axiom — that beauty lies in the art of the beholder — does for our art of treaty interpretation.   What constitutes a “good” interpretation of a treaty may be as difficult to agree upon as what constitutes good “art.”  Indeed, I see the question of the continuing salience of Prof. McDougal’s work (or the concept of textuality raised by Professor van Damme) as essentially a debate over which treaty interpretation techniques we should celebrate and which we should disapprove.  We might analogize it to debates among various schools of art.  Do we consider photorealism (i.e., textualism) to be better than abstract art (i.e., the New Haven School)?  Or, is the answer somewhere in between a la impressionism (i.e., the VCLT rule)?”

 

This statement reminds me of something I once wondered about the Italian Renaissance. During that period, many scientific breakthroughs took place in the shadow of developments in art. Brunelleschi’s design of the Dome of the Basilica di Santa Maria del Fiore, at that time the largest self supporting brick dome in the world, was a scientific as well as an artistic marvel. Similarly, the work of Leonardo da Vinci and Michaelango speak volumes of the connection between artistic endeavor and scientific discovery. What can the “science” of treaty interpretation learn from the “art” of treaty interpretation? Or are they mutually exclusive enterprises?

 

International Law as History and Geography Applied

Some time ago, I was taught that international law was history and geography applied. In “Imagining Sovereignty, Managing Secession: The Legal Geography of Eurasia’s ‘Frozen Conflicts’”, Christopher Borgen seeks to validate this proposition to a good measure.

 

In the course of his analysis of the series of ongoing succession-ist crises in the post-Soviet states of Moldova, Georgia and Azerbaijan, Borgen pits respect for the right to self-determination against respect for pre-existing borders. He argues, “(s)ecessionist entities that are able to point to some previously existing boundaries to which they will conform have claims that are more likely to be viewed as legally legitimate…Thus, in an attempt to impose a bright line rule on the messiness of ethnic conflict and separatism, the international community gives weight to cartography and political geography. Being able to show a delineation on a map may not be dispositive of a claim for external self-determination, but it helps.”

 

He goes further, noting the prospects for the Westphalian system. “This legal system presupposes the existence of a state system and for its proper functioning, it has defined rules concerning secession that protects the existence of states. Geographical concepts such as territory and borders are used to this end…But states are still the core of the increasingly complicated international system and, absent any showing of a viable alternative, are still the best hope for broad-based approaches to peace and justice. Long live Westphalia.”

 

It is refreshing piece of inter-disciplinary legal scholarship. However, while reading it, I get the feeling that Borgen is wielding a dated instrument. Geography has always been part of international law. Or at least, it has always been part of the narratives that international lawyers construct. No points for saying it out loud now.

 

More importantly, it is a blunt instrument. Inter-disciplinary international law scholarship has developed far more incisive ways of looking at geography. For instance, law and economics scholars may view geography as an allocation of entitlements. This has the added benefit of accommodating the concept of territorial sovereignty as a basket of rights which may be further allocated. Constructivists may focus on the idealational value of geography. They may look at how territory, as defined on various pieces of parchment, provokes a response from people and policy makers. Behavioral economists may ask if there is a heuristic bias toward protection of territorial rights as opposed to other legal rights. Do we feel differently when faced with an infringement of territorial sovereignty as opposed to a piece of legislation which affords prescriptive jurisdiction?

 

Perhaps, these are more salient issues to examine in the future. The Opinio Juris blogpost which links to the paper is found at http://opiniojuris.org/2009/02/23/imagining-sovereignty-managing-secession-and-fourth-generation-warfare/.  

Lunchtime Talk: Listening to What Developing Countries Say in Disbelief: Robert E. Hudec’s Complex Legacy by Prof. C.L. Lim (HKU)

FILA…, in association with the Fletcher School‘s International Law Society, invites you to a lunchtime talk by Prof. C.L. Lim, Professor of Law and Associate Dean at Hong Kong University.

 

*LISTENING TO WHAT DEVELOPING COUNTRIES SAY IN DISBELIEF: ROBERT HUDEC’S COMPLEX LEGACY*

by

Prof. C. L. Lim, Professor of Law and Associate Dean, Hong Kong University Law School

With a special introduction by Prof. Joel P. Trachtman, Professor of International Law, The Fletcher School

*
Lunch shall be provided

Date/Time: 5th March 2009/12.45 pm to 2.30 pm

Venue: The Crowe Room, The Fletcher School of Law & Diplomacy

Kindly RSVP to Jeremy Leong at jeremy.leong@tufts.edu <mailto:jeremy.leong@tufts.edu> (places are limited)

Prof. Lim will speak on international trade law and distributive justice in the development context. In what he terms as the “conventional morality” of trade, Prof. Lim will address existing theories on trade law and developing countries and revisit the legacy of the late Robert E. Hudec. In so doing, build a new paradigm in understanding both the receptiveness and the bias today against arguments about right and wrong in trade law and policy.

More information on the event and the speaker may be found at http://fletcher.tufts.edu/FILA/pdf/Fletcher_5March2009.pdf.

 

 

Fragmentation of International Law: Dispute Settlement

Here is a new angle for the fragmentation of international law discussion, in particular how individual international tribunals deal with fragmentation. Ruti Teitel and Robert Howse in “Cross-judging: Tribunalization in a Fragmented but Interconnected Global Order” argue against studying tribunalization in an aggregate quantitative assessment. Instead, they advocate a deeper qualitative study of whether tribunalization and fragmentation “introduces new dissonances and points in different and perhaps conflicting normative and institutional directions” to individual tribunals.  

 

In canvassing international human rights tribunals and international economic law tribunals, they find:-

 

“Instead international legal order will resemble the messy porous multiple value and constituency politics of democratic pluralism, which is nevertheless underpinned by a more absolutist baseline commitment to the preservation of the human as such. This may still be in a sense fragmentation, but in mirroring non- or anti-hierarchical democratic pluralism this kind of fragmentation enhances rather than menaces international law’s claim to legitimacy… Tribunalization can come to sight both in “humanity law” and in international economic law as an attempt to purify international legal regimes from “politics”-a response to the international law skeptics’ claim or suspicion that international law is just an epiphenomenon or a justificatory rhetoric for power politics.”

 

My view is less hopeful. Teitel and Howse accept the limits of the assumption that “(t)ribunalization means depoliticization.” Tribunalization only leads to a new level of political game with new constraints. Yet, they accept that tribunalization and fragmentation need not be a problem so long as there remains a “commitment to openness in the project of legal hermeneutics” – a praxis driven,

construction and evolution of legal order, whether domestic or international.  

 

At the extreme, this is not merely constructivism but a form of “uber-constructivism”. To extend Wendt’s oft quoted observation that states do not know what they want, Teitel and Howse are postulating that tribunals do not know what they want. This ignores a simple legal and political fact of life for tribunals. Tribunals are creatures of consent and are bound by that consent. Their mandates are spelt out by treaty. Simply put, tribunals are told what they should want. Yes, I agree that sometimes this instruction is not spelt out all that clearly. However, to assume that states parties to dispute settlement treaties have themselves a collective “commitment to openness in the project of legal hermeneutics” jumps too many analytical steps.

 

At their most conservative, Teitel and Howse may just be advocating for some sort of universalist interpretative technique which results in harmonization. To date, this exists: the VCLT. But Teitel and Howse appear to be advocating something beyond the VCLT and if so, must, in the absence of further evidence, fall foul of positive international law.

 

The paper can be found at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1334289.

 

Views and comments are very welcome!

Obama, Change and International Law Part II: A Historical View

Sometime ago, we asked about how the new US President and his “Change” campaign affects international law.

 

Mary O’Connell from Notre Dame Law School offered a historical perspective in a Jurist Op-Ed. She traces US treatment of international law from Morgenthau to Obama and argues that scholastic developments in “political science and law have resulted in a decline in respect for and even knowledge of general international law in this country.”

 

Yet, she concludes on an optimistic note:-

 

“President Obama studied international relations at Columbia University and law at Harvard when the intellectual emphases were on civil and human rights but not general international law. Many of his new advisers in foreign policy are well known for their concern for human rights but are also associated with pressing for the use of military force even in violation of international law. Indeed, it is understandable that any student of political science in the United States in recent decades would conclude that the best way to show American commitment to human rights is to be willing to use military force in response to human rights violations…Complying with international law across the board in areas of human rights, the environment, the economy and the use of force may sound like a radical change for America. But it is change we should believe in.”

 

Complying with international law across the board is already proving extremely challenging. On one hand, President Obama, has taken immediate action on the Gitmo/human rights front. On the other hand, we wonder whether the US will succumb to protectionism and test the limits of WTO law in the face of the current economic crisis. (At least one commentator thinks so. See http://opiniojuris.org/2009/01/29/the-obama-stimulus-violates-international-law/)

 

For the full text of O’Connell’s Op-Ed, see http://jurist.law.pitt.edu/forumy/2009/01/president-obama-new-hope-for.php. Cyber hat tip to Opinio Juris for pointing it out.