Archive for constructivism

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!

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 http://fletcher.tufts.edu/FILA/pdf/FILADiscussionPaperNo0109.pdf.

The Death of Conservative Intellectualism (Some Say)

Posted in General Thoughts and Comments with tags , , , , on November 9, 2008 by jeremyleong

 

Warning: This post is not really about international law per se. It will, however, pretend to say something about globalization and the permeation of political ideals.

 

Yesterday’s WSJ has a thoughtful piece about the demise of conservative intellectual tradition in the US. See http://online.wsj.com/article/SB122610558004810243.html. Mark Lilla at Columbia University reviews where the conservative intellectual tradition stands today, in the aftermath of Republican defeat in the US Presidential Elections. His prognosis, “(t)he Republican Party and the political right will survive, but the conservative intellectual tradition is already dead. And all of us, even liberals like myself, are poorer for it.”

 

I am, by no means, a credible commentator on American politics. However, I know that American politics is not “the be all and end all” of, well, all politics. There is reason to believe that conservative political thought is alive and well in some parts of the world. (Definitely so, in parts of Asia and Europe.) In the event that Prof. Lilla is correct, is there opportunity for conservative political thought in the US to rejuvenate itself from the outside? Can American political thought gain from that of other states?

 

The logical answer is: Of course. It has from its inception. The US Declaration of Independence echoes John Locke and Montesquieu, as does the Federalist Papers. The fact is that political thought has time and again transcended territorial barriers. I think of Metternich during the Congress of Vienna as an old example. Some say that the Congress of Vienna was an international agreement to suppress revolutionary ideals in favour of conservative policy all across Post-Napoleonic Europe. Today, inklings of liberal political thought can be found in human rights instruments, international trade agreements etc etc.

 

Then, the pertinent inquiry shifts to whether American political thought has become so insular that it will resist the permeation of any values from the outside. In a “flat” world where information and discourse is transmitted seamlessly and rapidly, there is no reason why it should. Access to foreign sources of political thought is widely available to the American polity. To say that American political thought has nothing to gain from outside will be nothing short of intellectual arrogance. However, it would not be incomprehensible arrogance. The perception that the US has been a political “thought leader” for the past half century and beyond is a very palpable one. Nonetheless, if conservative politicians in the US consider that some intellectual rebirth is needed, there is no harm looking for it beyond American soil.

 

 

As for the ultimate question of whether the US conservative intellectual tradition is, in fact, dead? Perhaps, Prof. Daniel Drezner will have something to say about it on his blog (or even ours).

Obama, Change and International Law

Posted in General Thoughts and Comments with tags , , , , , on November 6, 2008 by jeremyleong

 

The votes were tallied as the world waited. The results were announced and history was made. America got her new President. Change was the promise. With a Democratic party dominated Congress as well as the possible opportunity for President-Elect Obama to pick 2 Supreme Court Justices during his term in the White House, this is certainly a good time for the President-Elect to make good on his promise.

 

How well does an Obama administration bode for international law? During the Presidential Primaries, ASIL conducted a survey of the various positions taken by candidates on international law issues. Obama’s responses in this survey generally signal a shift in US policy from unilateralism to multilateralism as well as an emphasis on the need for better compliance with international law so as to enhance US ability to influence international law creation and promote American values abroad. However, on particular issues, the existing international obligations and rules seemed unsatisfactory. For instance, he, in the course of the campaign, strongly advocated the re-negotiation of NAFTA as well as supported humanitarian intervention in Sudan. See http://www.asil.org/obama.cfm as well as a previous post on intervention: https://fletcherfila.wordpress.com/2008/10/06/intervention-some-food-for-thought-on-a-fletcher-favourite/.

 

Two issues come to mind.

First, perhaps, only time will be able to separate meaningful policy statements from campaign rhetoric. Of course, this would have been a necessary concern regardless of whoever won the election. However, there already has been some controversy in the Canadian media over Obama’s commitment to re-negotiate NAFTA. See http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20080227/dems_nafta_080227/20080227?hub=CTVNewsAt11. Furthermore, adherence and compliance to international law takes more than executive policy and the new administration will be operating under domestic political constraints. Such is the wisdom of Putnam’s Two Level game.

 

Second, social constructivists may have some fun in examining the idealation effects that Obama and his “Change” campaign will have on international law creation. Will US values and preferences become more accepted in other states to the extent that these foreign values and preferences change? To what extent will this change be attributable to the strength of the Obama message? Also, high expectations can be a double-edged sword. In the event that the new administration fails to live up to its promises, what impact will the subsequent disappointment have on US ability to change foreign values and preferences? What can public diplomatists do to manage expectations?

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?