Foreign Policy has issued an exclusive survey on the “Ivory Tower”; focusing not only on what are considered the top places but also on the policy views of international relations academics (free registration required). It is interesting reading for anyone interested in IR and IL. A similar survey for IL would likely also be interesting reading.
An interesting article in First Things, discussing Maritain’s work, may help give an alternative explanation for the “bindingness” view of IL in Europe or even of law of war/use of force views at the UN level, and why Americans often have such a different view. On the European side, maybe “French values”, as Alvarez describes them in his post-mortem post (citing Gilbert Guillaume), of “dissociation of morality from law [not so sure about this one -- A.G.], the importance of formalism, and the separation of economic concerns from law” (for now putting aside all the crit views coming from Europe), originate in part from a view of historical determinism/development and not just from a post-natural law world or even formalism as classically defined. Maybe a similar view also plays a role in what are usually seen as natural law or post-natural law justifications, critiqued so often by Glennon (especially its use in the UN and in the use of force realm) and others.
As Maritain observed, it might not be that Americans are ignorant of history, rather that history is not seen as guiding the present to the same extent some in Europe might see it. While this might be interesting in terms of popular views of IR and IL, it might help explain not only positivism’s rejection of natural law but also, paradoxically, alternative theories that abound in the US (even overtly natural law-based theories) that try to bring in other fields and viewpoints. If one is free from the weight of history (or at least if those in a position to make the rules feel that way) then one can make up the rules and one is free to look around for inspiration in economics or psychology or wherever. Whether one sees this situation as “anarchy” (in the colloquial sense) that needs to be controlled or a kind of creative space is an ongoing divide in the US of course, politically and otherwise, and in legal spheres it can lead to anything from Holmes rejecting grand visions of history through his disillusionment in the Civil War to “happier” views of those rejecting “history” due to the supposed youth and possibility of America. But as an example, seeing economics as a tool to take to IL, rather than as either an all-encompasing power (in Marxist/materialist terms) or as a distinct field in its own path (perhaps outside the grand arch of history), perhaps could only happen in the US. There was less baggage to economics, so it was easier to carry it over to law. Same thing with crit views and deconstructionism and all, to the extent they are used in law. One doesn’t have to drag along the ages of history and battles between ideas, along with the implication that this is all part of that historical tragectory; one can simply cherry-pick ideas to support arguments. In this prism, the dominance in the US of positivist and realist viewpoints makes sense, along with more populist morality-tinged natural law views, even overtly religious ones. As the article notes, this also may explain why Marxism/communism never really caught on in the US (its “root incompatibility” as the article cites Maritain), because it requires a Juggernaut of history (or at least a view of history being as such) preceding it. And one can go before Marx to Hegel of course, and then run around through the determinist cannon.
It is at least possible to conceptualize a divide not just on positivism or realism v. natural law or post-natural law or even positivism or realism v. formalism but also on positivism or realism v. historic determinism or at least “requirements” demanded by history which in part justifies the “inherent bindingness of IL view” through the prism of history binding actors, including individuals, states, etc.. It also suggests why European formalism is not merely privileging form for its own sake or why the UN and others are not necessarily relying solely on the underlying validity of the norms being put forward (whether their basis be “rationality” or “morality” or “religion” or “human nature”) but perhaps in part at least privileging the force of the past and the “development” of history as sometimes evidenced by form (and of course as interpreted, politicized, etc.).
So should anti-European-style-law, or especially anti-UN-”fluffy natural law do good”-types spend some time not only critiquing St. Augustine, but also take a shot at Hegel? Or is this simply a corollary to a view of natural law moving from a religious basis to more human-nature bases? I suppose it is, if historic determinism is just another part of “human nature” or fits under the “natural law” umbrella writ large. Or it is something else entirely? Is “determinism lite” playing any role in the creation of IL, is there any real evidence that this is a factor, or is this just a selective interpretation and a buying-into of stereotypes of Europeans and Americans?
The article suggests other debates, from the scope/existence of American exceptionalism, whether the US has its own narratives of history, to the use of European scholars in the US or what have you – all very worthy discussions in the field of IL.
On Human Rights Watch there is a note on the upcoming Oslo Conference on Cluster Munitions. These efforts are commendable.
But I have a feeling that in the international legal discourse this might ultimately show one of the ongoing problems with international law discourse, at least at the general/public level. The conference will cover some non-parties to the UN Convention on Conventional Weapons (CCW) and “a significant number of countries that produce or stockpile cluster munitions.” (alas ”significant” is an incredibly vague term in the article).
But the big players, including Australia, China, India, Israel, Pakistan, Russia, and the United States, are “not expected to come.” And while again it is a good thing to limit the use of certain horrific arms when possible, I would keep an eye out to see at what point any Oslo treaty, or even the fact of the conference, becomes referred to in more unsophisticated circles as international law somehow binding on non-parties or perhaps in other circles as evidence of “customary international law”, despite the fact that the primary makers and users of the weapons are not on board and even fought the debate at the CCW level. We shall see. I doubt Human Rights Watch will do this, but I am sure plenty of other people will. All too often arguments claim that a treaty amongst a few parties (or even amongst many, but sometimes filled-in with parties with not much stake in the matter) or a few random cases are evidence of “custom”. That leap is simply too big to make most of the time, especially without at least addressing the issue of the big detractors/non-signatories and also the biggie of international practice.
Perhaps the key is to make sure what any particular treaty means and not over-play the hand, thereby often undermining the real progress treaties can make. And the key on the “other side” is not to take the inevitable “international law puffers” as the standard in the field and to not simply cite them to show why international law is invalid or weak or whatever. This, unfortunately, also happens far too often and is just a sign of only taking on the worst arguments of your opponent.
And of course, even if a treaty does not apply directly to parties it can sometimes ultimately pressure them, especially on a moral basis. And it might be key for some countries, especially those where these types of weapons tend to get used, to make a statement about how they will not tolerate it. And in the war of precedents/custom/who constitutes “authority”/etc. it at least makes an argument.
In any event, this may be an interesting case study to follow and is perhaps part of a trend to get lots of treaties signed up even if some of the classic “world powers” are not on board. Perhaps this means setting an “agenda” that the treaty countries hope big players will ultimately come around to? Does that mean the big players should get involved, or do they only hamper the process? In the meantime hopefully whatever treaty ultimately comes out, if any, can make an impact for those who sign up to it, and be the basis for wider action and perhaps ultimately more signatories.
There is an interesting op-ed in the LA Times about how pundits and political scientists in the United States get almost everything wrong, in large part due to taking too-narrow views of any given situation. It notes the need for a “null hypothesis”, where any theory has to show it is better than simply a random sampling of outcomes.
This can of course be applied to international law in a number of ways, though law, above other fields perhaps, at least pretends to be predictable and actively strives to render the subject matter at hand somewhat more predictable. There are any number of issues this brings up. But here I wanted to at least raise the question of if part of international law scholarship is simply asking the wrong questions or also focusing on too-narrow debates.
Ongoing debates about the use of force, whether it is valid or not, etc. and often seen as a proxy for the validity of international law writ large. So are inquiries into views on certain international institutions, particularly the UN. Others, such as Jack Goldsmith and Eric Posner, for example, have argued that when it “really matters” (which is itself an issue), IL fails.
But should different approaches be taken? The environmental movement has long been international – and continues to make law no matter what happens with the Kyoto accords. International law penetrates deep into financial markets, international trade, labor law, torts, intellectual property, etc. and one realizes the world is actually highly regulated, often using international law regimes, organizations, etc. with little or no fanfare. Is this not “international law”? When one thinks of what international “law” has to say on a particular issue, there is a lot more going on. If one adds comparative law, especially outside of the United States (with South Africa’s comparative approaches as an obvious example) then the interactions get even more complex.
In Iraq, for example, the natural (and no doubt valid) leading issues for international law might be the use of force initially, the treatment of prisoners, occupation issues, self-determination, etc. etc. On these fronts the validity, or more to the point, the “power” of IL, may seem very weak indeed.
But as others have shown, there is a huge mishmash of international investment law, international trade, drugs/crime issues, criminal tribunals with IL implications (though the predicted Grotian moment of Saddam’s trial may have been somewhat of an exaggeration – perhaps by the ultimately botched ending - but maybe the IL implications will still play out and be sure to check out the cite, along with Human Rights Watch’s summary of the trial), environmental issues, art law, tax law, etc., etc. and international regimes, paradigms, or spin-offs were and are being used, for better or for worse. Of course security remains paramount, but that does not stop other rules from being in play. As Naomi Klein pointed out a while ago now (I cannot vouch for her positions, but the article raises fascinating issues), an accelerated view of the Washington consensus, backed by mounds of “international law”, has long been in play in Iraq. And the invalidity in one area, say the use of force, does not mean IL is doomed in other areas. Sometimes this slanted view of IL might be a two-pronged attack — downplaying IL as invalid in some areas and ignoring it and its impact in others, for example by pretending that a free market or other environments are not made so through regulations, principles, ideals and institutions often borrowed from or reflected in some forms of IL (i.e. property rights, freedom of capital, supremacy of contract over social principles and across very different governments and regimes, etc). There is a whole web of IL and forgetting this often hides IL’s power. The point here is not to self-validate and “empower” IL (perhaps the ethos that Goldsmith and Posner were most disturbed by), but to question how various aspects of life are or are not at least in some way altered by IL, including by the discourse of IL, whether there is anything to “back it up” or not. Of course, just because there is some international concern, and some occassional references to law, this does not mean there is “IL” going on. If everything is IL, then perhaps nothing is. But the contours of the field are worth considering, and efforts like the one by Goldsmith and Posner, whether you agree or not, are commendable.
It is funny how the debates on some IL issues become localized to certain areas/discourses, with certain scholars focusing on limited fields. Perhaps this is a necessary requirement in worlds of specialization and “expertise”. I wonder if a map of the discourses, or a series of maps, would prove useful in seeing what is addressed and what is left out, at least in the US discourse.
In addition, though somewhat different, Professor Tribe at HLS once drew a series of “constitutional law” diagrams trying to show the interplay of various rights, provisions, concepts, standards of review, etc. within the field. Similar charts mapping out the terrain of classic arguments for IL (at least in the US for a start) might also be a useful exercise and might help think of the boundaries of what is viewed as “international law”, what is outside of it, what is viewed as second-tier IL and then only reluctantly, etc. Perhaps if there is time, this blog will try it one day.
This “post-mortem” post from José Alvarez at the ASIL focuses on the US relativising IL as opposed to France’s focus on the rules and obligatory character of IL (something the US might never truly accept and not, in my view, without some good reason), but it also represents a concern already felt here at the far less scholarly (and more recent) international law post, namely the increasing amount of material falling under the “international law” label. So much so, that, as Alvarez suggests, anything devoted simply to “international law” risks such generalizations as to become almost meaningless.
The IL field is enormous, and as it is increasingly seen by many as “law” rather than policy with some legal footnotes, this makes it incredibly difficult for those who wish to pursue careers in international law, especially on the American side. What does this mean? How does one get the skills one needs? Part of it of course is, as in law in general, an increasing need to specialize. It is incredibly difficult, if not impossible, to be an expert in international finance AND international human rights AND international criminal justice.
Perhaps this is a lament that is overdue, and perhaps international law, in its infancy, presented a sort of lost opportunity and archetype that supposedly used to exist (if it ever really did) in the field of law in the US — the generalist, who could do a business contract one day, litigate the next, draft a will by 5PM and write a brilliant law review article on legal thought in his or her spare time – all with reasonable competence and without committing malpractice. Maybe this general lawyer still exists here and there, perhaps in “small town” practices, but I doubt it. Perhaps rotating to different departments or parts of law school and clinicals and clerkships are trying to keep this generalist dream alive, or at least help lawyers and future lawyers think this is possible.
But in a very complex world, and in the increasingly complex worlds of international business and international litigation approaching (or surpassing) the complexity of domestic litigation, people have to increasingly rely on big firms and specialized players who are aware of bits and pieces but perhaps not the whole. For a young associate this can be extremely trying as one is torn between learning all one can about the particular field one is practicing in while trying to keep up with developments in public international law/other fields.
One is reluctant to make choices and focus, perhaps in part because the allure of Ian Brownlie-types, these “wise elders” of IL, is so strong. Who wouldn’t want to be an IL “guru”? Perhaps it can be maintained by focusing on on the narrow range of obligatory international treaties and rules covering essentially “public international law”. But does this then really do IL justice? Then is one just a hyper-generalist, capable of talking about sources of lL or whatever, but not really able to litigate in the ICJ, close a cross-border offering, or advise a military officer on the legality of the use of force in a particular context? Perhaps there is the focus in one field, then the taking a step back to comment on the larger field. And losing the “wise elder” authorities is a very key and necessary step in the development of any field; often too much power comes from simply being seen as an authority in a “young” field. But without even a realistic ideal of such a person, it does make choosing a career path a bit harder.
But as the public/private distinction falls part, the need for cross-pollination grows even as it gets harder and harder to do, and there seems to be an intricate web of talent, with specializations, cross-understandings, limited expertise in various areas, etc. all coming together. But stuffing this all into an “IL” label gets increasingly difficult. Maybe, as with the matatu, there is “always room for one more”. At least it makes for an interesting, if not always smooth, ride.
This is an international law blog, but there is nothing like these photos to remind us of why we do what we do, or why we should be doing more or something else — to try to make the world a better place, with all of its faults and all of our faults.
The World Press award photos are here.
Thusfar this blog has largely avoided some of the “big” current issues in international law, especially the Iraq war, for a number of reasons — in part because it is such a divisive issue but also because the law surrounding the field is in flux. But here I wanted to note that not only are US soldiers and untold Iraqis dying on a regular basis, but so are many civil servants, international humanitarian workers, lawyers, reporters, diplomats and others who were very dedicated to their respective causes. And this is true all over the world, where people, international/foreign and domestic, die or are killed on a regular basis just trying to establish what they hope will be a better life/country/world/etc.
This thought was triggered by looking at the NDI website, in which there is a memorial for Andrea “Andi” Parhamovich and three security personel. Just a little reminder that while academic debates abound, there are also people “on the ground” trying to do what they feel is right, and this is as true in international law (broadly defined) as in anywhere else. And this is coupled with daily sacrifices by so many people, from standing up to authority and risking lives and careers, or moving to difficult posts, to working hard, often in anonymity, on imporant causes and issues from human rights to development to international law to “simple” peace long after celebrities or the press have moved on. Even the ultimate sacrifice is often underreported and even untracked, especially for those working outside of major institutions. We have daily updates on military deaths in Iraq and Afghanistan, which of course we should have. And there is a huge debate on the number of Iraqi civilian deaths, another key figure, and the loss of life of anyone is no less tragic just because of the country of origin. But it strikes me as truly odd that we rarely see any detailed reporting or tracking of US or international civilian deaths in Iraq or Afghanistan. This cite seems to make an effort to track deaths and injuries of many parties (and I cannot vouch for its accuracy in any way), but it acknowledges being far from complete, especially for non-military deaths.
One might not agree with everyone “on the ground”, and an important part of academia, the press, the public discourse, the blogosphere, and other sources is to evaluate, critique, and hopefully improve the work on the ground and the larger issues/goals/etc. that are being sought, and even challenge and question what those goals should be. But the sacrifices people make should be appreciated and remembered.
This is somewhat rehashing old news, but I recently received a form letter from Dean Kagan outlining some of the changes to the 1L Curriculum at HLS, which includes, inter alia, a requirement of one of Public International Law, International Economic Law, or Comparative Law. A press release on the October vote is here. All of this is good news and a Dean Kagan and the faculty are to be commended for trying to take the law school in new directions.
It is also interesting to think about the possible consequences of some form of international law as a 1L class for far more people than in the past – what might this mean for the field? Though HLS is only one school, and with respect to IL it is somewhat behind the curve, HLS does produce the most number of lawyers of any US law school. And more lawyers looking at a topic early on tends to set that topic – few law students like to question the basic validity of something they have just spent months cramming into their heads. Aside from a few challenges here and there (and most of Torts, at lease in HLS), is there a lot of questioning of the basic premises and validity of, say, Property or Contracts? Will having international law as a 1L “LAW” class “law-ify” international law more? Is this good or bad? As a recent Balkanization post noted, despite preconceptions, international law is not always the most liberal or open field. And just think of how international law supports global institutions and structures, especially the underlying statist structure, for better or for worse.
David Kennedy often professes concerns about a clique of professionals and institutions that reinforce a narrow range of worldviews with respect to international law, international politics and international business/economics, and about the relationship between law and power (see here for example). Will these concerns only increase as more lawyers enter into the field? Or, though HLS is by no means representative of the population, will including people who are not necessarily attracted to international law just increase the pool of possible voices, with even more naysayers, law and econ types, leftists, feminists and others entering into what has so far been, at least in the US, a predominantly (but by no means exclusively) “Washington consensus”-liberal-positivist view of IL? It will be interesting to see what happens as young lawyers from HLS and from innumerable other schools (many of which have taken IL “seriously” for a long time) increasingly enter the field. It is probably a good time to be an international law professor too, at least until the next generation starts to grow up and expand an already highly competitive pool.
PostGlobal has an interesting discussion on the role of China in Africa, especially now that it is providing funds to Sudan. AllAfrica.com is full of stories of other funds coming in, especially on the coattails of President Hu Jintao’s Africa trip. It is an interesting debate, and one can see it in the project finance side as well as China steps up there, in a market already flush with cash (at least for the moment) that has weakened some of the more traditional players, who were used to being the only lenders/source of capital in town (and slanted the balance in terms of agreement drafting and the like).
And apparently China is not the only country stepping up interest in Africa, with Brazil and others getting into the field, though to a lesser extent.
So as not to poach too much, we’ll leave the discussion for PostGlobal except for one quick thought — though there might be reasons to be concerned because of increasing resource extraction and legitimate questions of who benefits, is the West partly concerned because someone else is stepping up to the plate? Does this have some early overtones of the Cold War money plays in Africa?
The Erika case regarding the 1999 oil disaster in Brittany started today in France and promises to provide a lot of insight not only into French and EU law, but also into the modern IL views on the environment and the oil industry. Here is a preview, along with the Le Monde description of the day.
This case brings up obvious parallels with the Exxon Valdez disaster of 1989 and the subsequent litigation. On a personal level, having recently living in Alaska, parts of Alaska are still recovering from the spill and a lot of oil was “left” as clean-up efforts began to cause more damage and interference than good. Going to the Prince William Sound area and seeing the wildlife is a life-altering experience and there are many good people on all sides, from fishers to oil workers to environmental activists and tourists. But it is still horrific to imagine the losses and many think it will never get back to how it used to be.
Of course there was also Exxon’s settlement with the State of Alaska, which remains controversial. And in places like the Alaska Sea Life Center (funded largely by the Valdez payout), one gets an almost impressionistic view of the tension between the interests of Exxon and others as the exhibit does discuss the spill, but only in a mostly tangential way, before going on to more pictures of cute sea otters. But people in Alaska remember the disaster vividly, and the Pratt Museum in Homer has a particularly moving and disturbing exhibit, complete with contemporaneous news and radio-wave coverage.
Alaska is such an incredible place, and we have to be careful as such places are fewer and fewer every day. When I read of the “préjudice écologique” being argued in France, while I cannot understand the depths the feeling of harm are for those attached to the region and the sea — one can hardly think of a stronger connection than the fisherman to the sea– even a glimpse of it in Alaska shows there is a lot more than just economic damage or even “just” limited losses of animal and human life in these disasters. The identity of many places rests with the sea, and disasters like these alter that identity forever.
On the private litigation side, the 9th Circuit, in Baker v. Exxon Mobile Corp., recently reduced the damages in private litigation (mostly by seafood processors but also tour groups, etc.) surrounding the spill, relying primarily on Cooper Indus. v. Leatherman Tool, 121 S.Ct. 1683 (2001), but remanding for the D. Court to put in $2.5 billion of damages. This raises a whole host of issues about the role of punitive damages — great fodder for law and economics debates on who should bear the cost of such an accident.
Of course oil and energy are important and there is a balance somewhere, but one should remember the costs as well – not only in terms of major disasters but also everyday costs that are by and large absorbed by the public (and Alaska is a good canary in the coal mine for rising temperatures, with melting glaciers, dwindling animal populations, etc.) and especially by those who live off the see, as acknowledged at least somewhat in Baken v. Exxon. Should the public absorb that cost? How much of it, and at what price?
I am curious to see the defense strategy for allocation of blame in the Erika trial and if the parties go after each other. Maybe that is France’s hope and concern at the same time. There are plenty of potentially responsible parties, from Total to the boat owner to the captain (who is apparently not at the trial) and crew to the rescue/recovery crews.
Some of the initial arguments by Total, that there is an abuse of law and essentially an attempt to get legislation from the bench, smell of classic US-arguments against “judicial activism”, which, borrowed from the US, is increasingly (and in my view unfortunately), being argued around the world. I wonder if there was a big outcry against “judicial activism” when the 9th Circuit proclaimed its own determination of damages in Baker v. Exxon (of course that was in the private context, but still…).
This trial, though in a domestic jurisdiction, also brings up a great swell of international issues — international parties, the international oil industry, domestic companies within that system, etc. It is really at the often blurry divide between international and domestic law, especially if (as I suspect) in civil law France they will look around to see what people/scholars/etc. think, including IL/environmental scholars. This should be interesting for anyone even remotely interested in environmental law, no matter the outcome.
