Archive for October, 2008

International Law, Science (Broadly Speaking) and Technology

Posted in General Thoughts and Comments with tags , , , , , , , , on October 30, 2008 by jeremyleong

So far, posts here have been limited to international law’s relationship with mainly the social sciences (e.g. economics, sociology, political science, etc). Regretfully, we have neglected to mention international law’s relationship with other fields of science such as the natural sciences and applied sciences such as physics, mathematics.

 

It is regrettable because science and technology has to a large extent permeated international law creation. They have also affected abilities to comply as well as change preferences for compliance or commitment to international law. There have been plenty of occasions where international law has been rendered irrelevant by scientific discovery and technological advancement and there are plenty of occasions where scientific discovery and technological advancement have provided sufficient incentives for states to cooperate in creating new international law.

 

Space law is one example. The first human was sent into space in 1961. Thereafter, the short period from 1965 to 1979 saw a proliferation of treaties relating to delimiting property in outer space; rescuing astronauts; registration of satellites; liability for damage caused by space objects; and regulating activities on the moon. Another example relating to compliance to international obligations can be found in the EC-Computer Equipment case in the WTO where a dispute essentially arose over the tariff classification of LAN equipment before and after the “Internet boom”. Science’s integration into international law is very clear from the WTO SPS Agreement that provides that scientific basis is necessary before a state can invoke the provisions of the SPS Agreement to carry out prima facie WTO-inconsistent measures to protect plant, animal and human health. See generally, http://www.microsoft.com/Presspass/exec/bradsmith/11-03-06InternationalLaw.mspx for an interesting speech by a SVP of Microsoft to ASIL on the relevance of technology to international law.

 

The interaction continues to this day. Contemporary issues like climate change, nuclear non-proliferation and the law on use of force are affected by technological advancements and scientific discoveries in the fields of clean energy, nuclear physics and military science. It seems the international law, at times, struggles to keep pace with the science.

 

Maybe a leaf can be taken from domestic law such as patent law and information technology law. Patent lawyers and information technology lawyers have embraced technology as part of their trade. (Just as international trade lawyers and competition lawyers have embraced economics are part of the same.)

 

I also look forward to more work on how technological methodologies permeate into international law. The “Science Studies” movement has already started to look at science from broader sociological/economic and philosophical context. See e.g. http://www.compilerpress.atfreeweb.com/Anno%20Ben%20David%20&%20Sullivan%20Sociology%20of%20Science%20ARS%201975.htm. I suspect that an examination which integrates law’s place in this may soon follow. This article I chanced upon entitled, “Law in a Shrinking World: The Interaction of Science and Technology on International Law” (http://works.bepress.com/joseph_w_dellapenna/11/) may be a good start.

 

Would love to hear the views of any technologists and scientists out there.

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ASIL Symposium on “Distributive Justice and International Economic Law”

Posted in Upcoming Events and Announcements with tags , , , , on October 26, 2008 by jeremyleong

ASIL’s International Legal Theory Interest Group will be hosting a symposium on “Distributive Justice and International Economic Law” in Washington D.C. on November 7, 2008.

 

“This symposium focuses on the role of distributive justice (e.g. questions about the fair allocation of primary goods under international economic law) and how international economic law may intrude upon the basic structure of domestic societies. The symposium seeks to explore this subject by examining its foundations, applications, and critiques.”

 

“Speakers include, Joel Trachtman (Fletcher), Daniel Butt (Oxford), Jeff Dunoff (Temple/Harvard), Carol Gould (Temple), Robert Hockett (Cornell), Aaron James (UC Irvine), Jan Klabbers (Helsinki), Chin Leng Lim (Hong Kong), Sanjay Reddy (Columbia), Kamal Saggi (Southern Methodist), Barbara Stark (West Virginia) Fernando Tesón (Florida State), Chantal Thomas (Cornell/Am. U. Cairo), Frank Garcia (Boston), John Linarelli (La Verne/Northeastern), Chi Carmody (Western Ontario), etc.”

 

It promises to be an exciting inter-disciplinary event featuring international law, moral philosophy and economics.

 

For more information:- http://www.asil.org/activities_calendar.cfm?action=detail&rec=38.

 

Constitutionalism and International Law: Clarity from “Impurity”

Posted in General Thoughts and Comments, Journal Watch with tags , , , , , on October 26, 2008 by jeremyleong

There has been resurgence in discourse relating to the relationship between domestic constitutional law and international law. Further, perhaps in an effort to re-examine normativity in international relations, there has been increased discussion of the prospects of international constitutionalism. The latest edition of the European Journal of International Law has several such articles:- “Human Rights as International Constitutional Rights” by Stephen Gardbaum and “Human Rights, International Economic Law and ‘Constitutional Justice’” by Ernst-Ulrich Petersmann, amongst others. Similarly, the latest edition of the International Journal of Constitutional Law features a number of articles which examine the impact of international law on domestic constitutional law and vice versa. Elements of this body of scholarship draw on disciplines such as moral philosophy and rational choice theory.

 

This enterprise is, however, not new. But it has undoubtedly taken on added sophistication. Hans Kelsen was one of the first to think about the relationship between the domestic and the international legal orders. From his “Pure Theory of Law”, Kelsen posited that international law is a source of validity for changes in the basic norms of domestic legal systems. This suggests that all domestic constitutional orders derive validity from international law. Further, this theory is considered “pure” insofar as it is derived from cognition focused on law alone. To Kelsen, an “impure” theory of law would include ingredients of psychology, ethics and other disciplines or ideologies.

 

What would Kelsen say about the “purity” of current interdisciplinary scholarship in international constitutionalism then? Domestic constitutional law scholarship has itself evolved along inter-disciplinary lines. For one, fairness and justice discourse is seldom far away, as evidenced by the works of Rawls and other moral philosophers. Further, public choice theory and other law and economics theories have had significant impact on domestic constitutional law scholarship. I suppose it is only natural for these and other extra-legal disciplines to have had the same effect on international constitutional scholarship and hopefully, increased scrutiny from multiple angles will help clarify the factors that continue to divide the international and domestic spheres. I believe a collection of essays edited by Professors Joel P. Trachtman and Jeffrey Dunoff on this very topic is forthcoming. We shall update you accordingly.

International Symposium: Perspectives on International Criminal Justice (Nov. 14-15, 2008)

Posted in Upcoming Events and Announcements with tags , , on October 22, 2008 by jeremyleong

The Fletcher School, with the support of the American Society of International Law, Centre de recherche sur les droits de l’homme et le droit humanitaire (C.R.D.H., Université Paris II Panthéon-Assas), the Centre sur l’Amérique et les Relations Transatlantiques, Paris (C.A.R.T., Paris), the French Consulate of Boston, and the Présidence Française de l’Union Européenne will be holding an international symposium on international criminal justice on Nov. 14-15, 2008. “The goal is to foster fruitful and multidisciplinary debate among prominent specialists in the field, thus contributing to an assessment of international criminal justice and to the global debates surrounding it.”

 

The symposium will be held at the Fletcher School and topics covered will include:- Global Dilemmas of International Criminal Justice; US & EU Divergent Approaches to the International Criminal Court; The UN Security Council and International Criminal Justice. Speakers include Fletcher’s own Profs. Hurst Hannum, Michael J. Glennon, Ian Johnstone and Louis Aucoin and other scholars and policy makers from both sides of the Atlantic.

 

More information and registration can be found at:- http://fletcher.tufts.edu/internationalcriminaljustice2008/default.shtml

Cheap Talk? How much is “Jawboning” Worth in International Law?

Posted in General Thoughts and Comments, Journal Watch with tags , , , on October 21, 2008 by jeremyleong

 

In “The New Sovereignty”, the Chayes note that “jawboning” or “naming and shaming” of states may be a significant factor leading towards compliance with international treaties. The latest edition of International Organization has an interesting article on this issue. In “Sticks and Stones: Naming and Shaming the Human Rights Enforcement Problem”, Emilie M. Hafner-Burton provides some empirical data on the effect of “naming and shaming” on human rights abuses and enforcement. The methodology employed (described by me in overly simplistic terms) measures and compares human rights abuses (referenced in the Torture Convention and the ICCPR) in 145 states before and after “shaming” by NGOs, the UN and the media. Accordingly, an index of “shaming” as well as human rights abuses is developed.

 

The study finds that “naming and shaming” is not all cheap talk.  It is noted though that, “governments subjected to global publicity efforts often behave in contradictory ways, reducing some violations of political rights afterward— sometimes because these violations are easier or less costly to temper yet some governments continue or expand their use of political terror—sometimes because terror is less in governments’ control or can be used to cancel out other improvements governments make but do not want to work”. In particular, the evidence produced seems to show that, on the one hand, governments “named and shamed” as human rights violators often improve protections for political rights after being publicly criticized, for example, holding elections or passing legislation to increase political pluralism or participation. On the other hand, “naming and shaming rarely is followed by the cessation of political terror and, paradoxically, sometimes is followed by more.”

 

It is posited that this paradox can be explained by various factors including, the varying capacity of different governments to reform, and that “some governments abuse human rights strategically—when faced with global pressures for reform…(using) terror, such as killings or beatings, to counteract the effectiveness of political reforms they make in response to international pressures, such as holding elections”.

 

How does this square with existing work on how states’ reputations affect compliance with international law? Rachel Brewster most recently examined this issue in “Unpacking the State’s Reputation”, which can be found at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1268322.

 

Brewster notes that most work relating to state reputation and compliance rests in constructivist theories of socialization and acculturation and attempts to find a rationalist basis for the same. This rationalist basis rests on the proposition that “reputation is a causal mechanism because it influences the future range of cooperative activity available to the state. Without a good reputation, other states will not want to enter into cooperative agreements that provide joint gains but hold the possibility of opportunistic defection.” Accordingly, assuming that compliance involves a Prisoner’s Dilemma, reputational costs associated with violation change the payoffs for a state in deciding whether or not to cooperate or defect. However, she keenly identifies crucial limits to this model which stem from the indefinite nature of reputation. In particular, problems arise with respect to varying time horizons for different states, distinguishing the reputation of the state from that of the regime, and the distinction between a reputation for “legality” and a reputation for “cooperation”. She concludes, “(b)y adopting a more limited view of reputation, we can determine when reputational concerns are important to compliance and where other (rational or non-rational) approaches to international law are needed.”

 

In some ways, Hafner-Burton’s work addresses some of Brewster’s concerns. In particular, it attempts to distinguish instances where the state has control of reputation from instances where it does not. Further, by sticking closely to human rights obligations in the Torture Convention and the ICCPR, “reputation” is given more definition i.e. “reputation as a human rights law violator”. However, it was unable to adjust for variable time horizons and only included a fixed effect for time. More importantly, it was unable to account for the varying weights which different states place on reputation. As Brewster notes, “(i)ncluding reputation in the calculus, where the weight of reputation can be incredibly high or vanishingly small, allows rationalist scholars to explain any act of compliance with international law. Reputation becomes an error term that makes rationalist claims invariably correct.”

 

Was sufficient justice done to “jawboning”? You be the judge.

 

 

 

Jus in Bello and Sociology

Posted in General Thoughts and Comments with tags , , , , , , on October 16, 2008 by jeremyleong

 

I recently came across a 2007 film called “Soldiers of Conscience”, which examines the psychological effects of war on soldiers. It provides accounts from 4 US soldiers who enlisted during the latest Iraq war but later sought status as “conscientious objectors”. It appears that one question that the filmmakers asked was “when is killing in combat permissible?”

 

I have yet to watch it. However, the methodology provoked some thought. The ultimate question of when killing in combat is permissible is a central question of jus in bello or the law of the conduct of warfare. This is a question which clearly transcends its ostensible legal nature into that of other disciplines, such as morality. The filmmakers here were perhaps conducting a little sociological survey of their own. However, this approach is not new.

 

In “Of War and Law”, Prof. David Kennedy (now at Brown University) built on his previous work in “Dark Sides of Virtue” to examine jus in bello with sociological and linguistic tools. He argues that the language of international law in this field has eroded the personal responsibility of soldiers and politicians in the conduct of war.

 

He notes, “(t)he problem for military professionals is no longer a lack of humanitarian commitment. The military has built humanitarianism into its professional routines. The problem is loss of human experience of responsible freedom and free decision-of discretion to kill and let live. For military officers and soldiers, renewing the experience of responsibility will require a reinvigorated sense of command responsibility, and an ethic across the force of refusing to allow the permissibility or privilege of force to lighten the decision to kill.”

 

This begs a follow up question. How are sociology (conducted in this manner) and constructivist theory in international relations methodologically related or unrelated? I suppose while the father of constructivism, Wendt, justified treating states as real, unitary actors to which intentionality can be attributed, he also accepted that the state is an agent of domestic actors. However, he assumes that states are constituted by internal structures that combine a collected idea of the state. Kennedy, on the other hand, peers beneath that assumption to look at the various actors behind the agency.

 

Is it then possible to achieve a “grand” theory of international relations social constructivism which integrates the two levels of analysis? Or has that been done already?

Frigid Financial Markets and Ice Caps

Posted in General Thoughts and Comments with tags , , , , , , , , , , , on October 14, 2008 by jeremyleong

 

A recent TIME article reports that Russia has pledged $5.4 billion to bail out Iceland. Yes. Russia, which is itself under large amounts of economic strain, is bailing out Iceland. There is speculation that this bail out is intended to help “Russia secure a bridgehead for an advance into the Artic regions to claim the vast hydrocarbon and other mineral deposits there” and bolster any Russian claims to territory there. See the article at http://www.time.com/time/world/article/0,8599,1849705,00.html?xid=rss-world

 

My last post raised the question of whether side agreements/payments relating to financial aid would arise in the wake of the continuing financial crisis. This instance may just be the start of a series of “aid for …” deals being cut.

 

It would seem that the financial crisis may have changed the incentives for states to cooperate in sublime ways. An interesting exercise in rationalist theory would be to examine how the international and domestic preferences of states and their constituents have changed as a result of the crisis. One example I can think of, is perhaps how domestic “hawks” who oppose foreign state sponsored foreign investment into key domestic industries may soften their positions relative to the need for capital in domestic markets. Another example, perhaps is Pascal Lamy’s (once again) call for the urgent conclusion of the Doha Round so as to “reassure the financial markets”. See http://www.wto.org/english/news_e/sppl_e/sppl88_e.htm.  

 

Thoughts? Comments?