Archive for history

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?

 

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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/.  

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.

Remembering Some Founding Fathers: Interdisciplinary International Law

Posted in General Thoughts and Comments with tags , , , , , on October 6, 2008 by fletcherfila

While FILA… may be new, the interdisciplinary study of international law at the Fletcher School is not new. Some greats in this field have, and continue to, grace our halls.

We start with Roscoe Pound. Roscoe Pound was one of the founding fathers of the Fletcher School while he was Dean of Harvard Law School. With him driving the enterprise, the Fletcher School was founded as a joint enterprise between Tufts College and Harvard University.

Roscoe Pound was one of the first legal realists. He invented a brand of (what he termed) sociologicial jurisprudence which called for judges to make decisions by weighing up social and economic consequences. No doubt, his scientific approaches to legal philosophy also came from his immense interest in the science of botany.

Next, we have Leo Gross, who was a protege of Hans Kelsen (who I believe also taught at the Fletcher School at some point). Leo Gross’s research and teaching always focused on international institutions and paid special interest to the International Court of Justice. In particular, his scholarship was always keenly rooted to political studies and the political evolution of these institutions.

Another founding father, in more recent times, comes to mind. Robert Hudec taught international trade law at the Fletcher School in the 1980s and 90s. Hudec was a giant in the field and was was once described as a better lawyer than most lawyers and a better economist than most economists. He was a legal realist who recognized that international trade law is “inextricably joined with international trade politics” (J. Trachtman, 2003). He was an empiricist and legal scientist (possibly due to his prior training as a chemist).

Current faculty members have stepped admirably into those footsteps, be it in law and economics; law and social constructivism; law and political realism, etc etc. Due to them, the Fletcher School remains a place where the empiricist meets the reductionist philosopher while having coffee with the historian and sociologist. In that light, FILA… has pretty big shoes to fill.   

But having seen those shoulders on which we stand, I’m pretty confident.