International Law

My understanding of philosophy is severely lacking, especially now that I practice rather than engage in scholarly pursuits full-time.  Certainly international law scholars are far more versed.  But I can’t help wonder if others have had a similar problem to one I have had, especially as classic positivist international law seems to be stuck at Hobbes and just gloss over large chunks of the rest of philosophy.  Is this because, as for me, a young non-philosopher law student can only get so far into (political) philosophy before getting tired or overwhelmed?  And while one might be able to get away with talking about works one has not really read (see this interesting article on it), even doing that requires some knowledge about the work, some effort, or some serious cross-referencing on Wikipedia.

The basic ideas of Hobbes are “easy” to understand (same with some of Rawls’ positions) so it helps make them popular; and it has this visceral Mel-Gibson-movie appeal — a world of “savage” men duking it out (no matter how much it does or does not comport with reality).  Then positivism has an ongoing train of supporters/standard authors/standard history one can ride.  For US-lawyers they tend to be British or American and relatively straightforward and easy to read, with perhaps just enough flair and visual imagery to make them romantic without being “romantics”. 

It is understandable if lawyers’ views just settled at some point, with only limited updating (usually reinforcing) after.  After all, if one starts to focus on law and made that decision to law school and abandon this or that field, one has a hard time even getting to Rousseau or more than a facile reading of Kant and much less to Nietzsche or Heidegger or whomever.  One might remember Philosophy 101, but who has the time to really focus on what these people meant when one is bogged down in contracts?  Bring in Wittgenstein or post-structuralists and people start to freak out — who knows what these people mean?  I have all sorts of heady philisophical books dog-eared at about the second or third chapter with random notes scribbled who knows where. 

Sometimes the more “radical” or want-to-be-contrarian US people will start to look to existentialism (also somewhat “easy” to understand in its primitive form) or the European-oriented will just jump to Foucault or Derrida and make arguments while the establishment derides them for not knowing their classics and derides the sources for being too confusing for the sake of being confusing (and thus “justifying” why they don’t have to read it).  It is fun in a way to see IL scholars talk past each other based on their philosophical understandings (or where they stopped reading).  Some true classicists just go with Plato and leave it at that.

Not that there is necessarily anything wrong with looking to other fields and not being an “expert”, as expertise is often overrated, but when international lawyers pretend have philisophical backing, one has to take a second look.  And while it is true that certain branches of philosophy lend themselves more to the somewhat primitive meta-narratives of IL while some branches (especially language-obsessed philosophy) seems harder to translate, this does not excuse over-privileging one side.  But then what is to be done?  You can only learn so much I guess.  But then be extra concerned with over-simplified philosophy, especially that flows from past centuries into theories about how the inter-state system works or should work. 

With outlier exceptions, of course, one can trace the IL philosophy citations through a rather small cannon - ignoring certain things, selecting others, deciding on who is a valid voice or not – which in turn “supports” a very small international law cannon – which not only helps to make a system of reinforcement and validation amongst other experts (and thus limiting and defining the field of entry), but also provides a perhaps necessary limit on how much one has to go outside of international “law” and into other fields.  The ICJ refers to, after all, the “teachings of the most highly qualified publicists of the various nations” and their institution-establishment credibility.  Such conservatism/elitism might be prudent, but it is somewhat shockingly brazen in its potential ability to insulate the field.  Even if this is only the “fourth” source of customary international law (if they are ranked, as many suggest), one can go back up through the chain and see that many of the other parts of it (“state practice” is interpreted after all, but opinio juris and jus cogens require someone to make selections and decide what these are), and even the basic validity of sovereigns-agreeing-to-treaties, are based on such a small set of sources.  Even the debates are framed within certain legitimate “oppositional” positions. 

Perhaps politics (and law) is the selection of sources after all and absent some kind of Constitution in IL to supposedly lay a groundwork, the discourse forms its own norms and limits and privileges “experts” who speak the language. 

But isn’t this all sounding very discourse-oriented…too much Foucault, especially for us Americans? 

This limited understanding and cherry picking of “truths” (or at least arguments about truths posing as truths) is even more apparent when law looks to other fields such as economics and sub-sets such as game theory, or sociology, or psychology.  A dilettante can have a field day. But more on that another time.

On a somewhat side note, it looks like Kennedy and Fisher published their famed secret bible of mystical legal wisdom, the canon of American Legal Thought.  And in Kennedy’s class he once noted that one of the main ways to get into the canon is to cite the canon…

One of the favorite ideas in international law, especially for positivists, is that of Hobbes’ state of nature, where there is “the war of all against all” and life is “solitary, poor, nasty, brutish, and short.” 

This is meant to highlight the “anarchy” (in the colloquial sense, no offense to anarchism) of the international system, in which states, like individuals in a Hobbesian world, will be terrible to each other absent some way of regulating behavior.  It also shows that the rules may not have inherent value (no natural law here) but are simply needed to keep things together (around here we jump back to Thucydides, which apparently, a young Hobbes took a stab at translating).  Hobbes’ Leviathan, the sovereign, did it within states, and positivists argue that absent an overriding international sovereign, some order must be based on rules agreed to by and amongst nation-states, and such rules are valid to the extent they are consented-to, etc.  Another, often underrated, benefit of citing to Hobbes is to shore-up the enlightenment basis and street cred of positivist international law, to in effect show “look how far we have come” on the basis of smart people like Hobbes and then through Holmes (if in the US) and so on.

Without getting into the issues of sovereignty (at least not today), if states are representative, etc., I wanted to ask if the assumption about Hobbes is accurate, and whether it applies.  There are classic counters to a Hobbesian view.  Locke saw man as a social animal.  There is the view of Rousseau that people are neither good nor bad, but are socialized one way or another.  Tabula rasa views abound.  Why not for states?  Maybe states will be peaceful, maybe warlike, but it is the system itself that encourage competition and war?  Maybe it is a certain type of state or world view?  And if one takes a look at the Rawls’ “original position”, sort of a state of nature, he argues people would actually seek out a system of basic rights and equality with rules designed to protect the worst off since one wouldn’t know where one would end up (there are troubles taking this “overseas”).  Though of course all of these have their nuances and critics.  Professor Unger, for one, taught a class on the human nature debate (and he personally rejects the concept of a timeless human nature), just highlighting how many views there are.  There is enormous ongoing psychological and biological debate of whether there is human nature or not.  This may be right or wrong, and perhaps a few bad apples can overwhelm a peace-loving (or peace-neutral) mass, but the basic validity of an individualized all-against-all state of nature should not automatically be taken for granted.  It may have been “externally” brutish against nature and then against other groupings, but maybe not all against all.  But how far does that bond with one’s “kin” go, and if it goes even beyond the family, then there is possibly something outside an “authority” holding it all together.  And as sociologists have at least suggested, systems of domination may have been created and may not be inherent, and at least the systems of domination as they exist today may not be inherent.  Though history, through its constant wars and dominations, would easily suggest the contrary, it is at least worth wondering if this is inherent or just that social systems of domination keep replaying over and over.  Of course, if there is no way to break the cycle then perhaps the difference between an inherent state of nature and a socialized state of nature that will always be is irrelevant.  But there is a lot of play here, and the debate just keeps getting bigger. 

The other problem is extending whatever this over-simplification of Hobbes means to nation-states.  This rough equivalence of states with individuals is troublesome on any number of fronts, especially when one gets outside of “traditional” Westphalian states and into post-colonial states, new states, post-conflict amalgamations and the like.  Does recognizing a purported “state” that subjugates minorities (or sometimes majorities) to various persecutions, letting it make rules and bind parties (think of extreme economic cases of foreign investment agreements binding local communities to move or pay debts for projects they might not approve of), all in the name of stability, reduce violence within the international system or add to violence within the system and more importantly, add to an overall level of violence (here using violence not only in the classic sense, but also in a more Foucault-like sense of political violence) if one takes out the black box of sovereignty?

There are no easy answers of course, and I do not necessarily disagree with positivism.  To paraphrase Churchill, perhaps the system we have is the worst except for all others.  But to assume that the state of nature existed as such, then assuming that it applies to an international system of states, and then assuming that we need rules based on the consent of sovereign states, requires cutting through a lot of muck, which many IL scholars simply sidestep by citation to notable “authorities.”  Thinkers to the contrary have their own little pool and clique and work amongst themselves. 

Finally it has struck me as odd how, though positivists reject the notion of “natural law” of St. Augustine, positivists have accepted a very negative view of human nature and origins, in some ways almost an original-sin (or at least destined-to-sin) view.  But the “salvation” is of the body through rules and systems of engagement rather than the salvation of the soul through faith.  What if all this meddling into the supposedly base human nature is actually the corrupting factor?  I do not really believe that, but it is worth considering.

With the recent finding in Britain of turkeys infected with the bird flu, Russia and Japan have put in place bans on British poultry.

This raises an interesting issue at the intersection of international health law and international trade.  When do countries violate international trade regimes by banning products from other countries?  Should it matter if there are potential trade violations, if there is even the slightest risk of the spreading of disease?  If trade wins out, especially through powerful international trade regimes, who is protecting the health concerns of the people?  It is interesting to note that this also comes up in a more general way because Russia declared US beef to unhealthy, and is now apparently loosening its stance somewhat. 

The US saw it as trade protectionism, but some have argued that there actually are reasons to be concerned.  A similar situation came up with US poultry in Russia.

A fascinating case is Europe’s attempts to ban genetically modified foods, which the WTO struck down.  Is this a case of international trade elites overruling domestic political concerns, or is the WTO right that there was insufficient scientific evidence to show the dangers of genetically modified food?

Food production and distribution is increasingly international and this raises all kinds of concerns not usually at the forefront of international law thinking, but potentially of vital importance.  Another interesting side point is just how long international cooperation has been going with respect to international animal health concerns.  According to the World Organisation for Animal Health (OIE) website, it predates the United Nations. 

The interaction of experts in international trade and international health, coming to decisions that often supersede those of domestic groups, seems fascinating and complicated.  “Private” and corporate regulation, which is supported by an international legal regime with an enforcement mechanism, has more force than the WHO, which lacks any implementation system.  Is there an imbalance, or are domestic counterweights sufficient?  I am no expert in the international trade of food products, and any comments/etc. would be welcome.

For the initial “real” post on this blog, we thought we would open it up to see what topics people would like to hear about.  Please let us know if there is a topic/field of international law that you would like to discuss!  In particular, please let us know if there is a topic that is being under-addressed in the IL community.

This is a new blog started February 5, 2007.  It is still under construction, but please check in soon.