Archive for the General Thoughts and Comments Category

A Few Interesting Follow-Ups to the Qaddafi Post

Posted in General Thoughts and Comments with tags , , , , on October 24, 2011 by hoisingm

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

Posted in General Thoughts and Comments with tags , , , , on October 24, 2011 by hoisingm

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

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:- http://fletcher.tufts.edu/FILA/pdf/FILADiscussionPaperNo0209.pdf. As always, comments are welcome.

What International Law can learn from the Renaissance

Posted in General Thoughts and Comments with tags , , , on March 4, 2009 by jeremyleong

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

Posted in General Thoughts and Comments, Journal Watch with tags , , , , , , , , , on February 23, 2009 by jeremyleong

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/.  

Fragmentation of International Law: Dispute Settlement

Posted in General Thoughts and Comments, Journal Watch with tags , , , , , , , on February 3, 2009 by jeremyleong

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

Posted in General Thoughts and Comments, Journal Watch with tags , , , , , on February 3, 2009 by jeremyleong

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.