Archive for the Discussion Papers and Commentary Category

The Uncertainty of Sovereignty and the Sovereignty of Uncertainty

Posted in Discussion Papers and Commentary on November 5, 2011 by hoisingm

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”

Posted in Discussion Papers and Commentary on October 24, 2011 by hoisingm

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:


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

Posted in Discussion Papers and Commentary, General Thoughts and Comments with tags , , , on March 24, 2009 by jeremyleong

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:- As always, comments are welcome.

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

Posted in Discussion Papers and Commentary, Upcoming Events and Announcements with tags , , , , on February 10, 2009 by jeremyleong

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.




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 <> (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



Discussion Paper: “Regime Proliferation and the Tragedy of the Global Institutional Commons” by Daniel W. Drezner

Posted in Discussion Papers and Commentary, General Thoughts and Comments, Journal Watch with tags , , , on January 16, 2009 by jeremyleong

We have posted our first discussion paper of 2009. Prof. Daniel Drezner has kindly contributed “Regime Proliferation and the Tragedy of the Global Institutional Commons”. This paper examines the aftermath of the 2001 Doha Declaration on intellectual property rights and public health and recent efforts to create a weapons of mass destruction interdiction regime. It argues that “(a)fter a certain point, proliferation shifts global governance structures from rule-based outcomes to power-based outcomes – because institutional proliferation erodes the causal mechanisms through which regimes ostensibly strengthen international cooperation.”


This discussion also calls to mind a couple of papers which appeared in a symposium organized by the Cornell International Law Journal. In “Global Institutional Reform and Global Social Movements: From False Promise to Realistic Hope”, Richard W. Miller argues that the search for “institutional fixes” distracts from more productive discourse about improving global governance by thinking about global social movements. He describes existing social movements as “an international bunch of people” who seek to relieve the inequities and burdens of globalization, etc etc. They regard each other as allies, wish each other’s causes well, share information sources etc etc. Their purpose: presumably to change mindsets. Thus, in contrast to Drezner’s rationalist approach, Miller’s thesis appears rooted in constructivism. See (2006) 39 Cornell International Law Journal 501.


Robert Hockett in “Institutional Fixes versus Fixed Institutions” (2006) 39 Cornell International Law Journal 537 offers a bridge between the rationalist and the constructivist. He notes, “(a)n institution is often a kind of transition belt or drive shaft for the effectuation of social movements’ aims themselves; and it is, even more than that, structurally speaking a kind of blueprint for what the movement actually envisages as endpoint if that movement has fully theorized and specified what its ultimate aims are. We might liken the institution to a clutch or a drive shaft, and we might then liken the movement to an engine. Or we might say that the institution is the material embodiment of what the movement articulates by way of a blueprint for a better world.”


We hope to continue our discussion on regime proliferation and on the fragmentation of international law in the very near future.


Meanwhile, Dan Drezner’s paper may be found at

International Criminal Justice Symposium Video Link

Posted in Discussion Papers and Commentary, General Thoughts and Comments with tags , on January 10, 2009 by jeremyleong

Happy New Year! Apologies for the radio silence over the last few weeks.

Normal service resumes.

We kick start the New Year with video links to last year’s international criminal justice symposium at the Fletcher School. We are grateful to the Fletcher School’s law faculty for providing the link.

Please see


Financial Crisis: And so the economists agree…

Posted in Discussion Papers and Commentary with tags , , , on December 5, 2008 by jeremyleong

A group of economics Nobel Laureates met in Trieste yesterday at the Nobel Colloquia. Their finding on the financial crisis:-


(A) new regulatory framework, setting out the principles for future governance of the banking system, would require broad global agreement. It may also need to include restrictions on the activities of commercial banks to discourage them from excessive indulgence in financial innovation.”


So the view from the economics academy is pretty resounding. It is interesting to note that their reason for why global agreement is necessary rests on a very familiar concept to international lawyers: Regulatory competition. Robert Solow opined, “international co-operation on future regulation was essential to prevent regulatory arbitrage, whereby banks can exploit differing approaches to regulation in different jurisdictions.”


That still does not resolve the question of how to achieve this cooperation. Dennis Snower suggested starting with building international consensus within the G-20 and the G-7’s FSF. This is not new. See Dani Rodrik’s and Daniel Drezner’s views linked on a previous post. (See


However, the economist’s work is not in vain. At least, we have a pretty credible and cogent view from one sector of the academy. Can it mobilize political will? Maybe it does at the margins. But how about beyond the margins? What’s missing?


The FT’s report from the Nobel Colloquia can be found at