International Law

This is fairly old news, but as the summer is rapidly flying by (and people may be starting/completing applications to various places), it is worth remembering that Fletcher will start offering an LLM in International Law in the fall of 2008, becoming the first non-law school to offer an LLM.  It looks like it will be based on Fletcher’s already strong offerings in IL and with Michael Glennon leading the program, it will certainly be well thought-out and very worthwhile (full disclosure – this author is more than a bit biased, being a Tufts/Fletcher/HLS grad).  Congrats, Fletcher! 

Here’s an interesting article from Business Day Johannesburg (via allAfrica.com) on the Paris meeting on Darfur (which ended Monday) from a rather skeptical perspective.  Considering the limited progress made at the conference, perhaps skepticism was in order.  But the article also brings to mind larger questions of the various takes on Darfur from and between the big “international powers” and others, especially African countries.  Darfur could certainly serve as a case study for the different ways in which the “West”, China, and African countries act (or don’t act) with respect to such tragedies and how they all play the various media games with lots of talk but often far too little action. 

There is a lot of news today with implications for IL, from the US Supreme Court deciding to review whether Guantanamo detainees can use the civilian courts to challenge their confinement (SCOTUSblog has an excellent initial discussion) to the bombs in London and (depending on who planted them, of course) what they might mean for security issues in Europe and the United States.

Almost to ease the mind, and to think about how the world might be interconnected still despite so many problems, it is interesting to note that yesterday UNESCO named additional World Heritage sites during the still-continuing 31st session of the World Heritage Committee.  This is not simply a marketing issue but also one involving a great deal of politics (see, for example, Poland’s successful application to change the name from “Auschwitz Concentration Camp” to “Auschwitz Birkenau” with the subtitle of “German Nazi Concentration and Extermination Camp (1940-1945)”) and it has its own international law mini-regime since UNESCO’s 1972 Convention concerning the Protection of the World Cultural and Natural Heritage entered into force.   It has implications for domestic laws, environmental laws, property rights/usage, etc. and it reminds one of the power of labelling in the legal sphere, especially in the IL sphere where other, more traditional, forms of law are not always as strong. 

It is also interesting to note that for the first time a site was removed from the list — the Arabian Oryx Sanctuary in Oman — due to Oman’s decision to reduce the size of the protected area by 90%.

The complete list of sites (just updated) is here.

FP has an interesting article (polemic, perhaps) by the famous William Easterly on “developmentalism” as a (failed) ideology.  While many of its points are debatable, it does raise valid issues. For international lawyers, this can raise issues in the development context (in the methods/goals/planning/impact of international projects and the like) but also in other IL growth areas such as arbitration/litigation (in terms of the best ways to resolve disputes), international criminal law (in terms of against whom/how/etc. crimes are punished) and especially in the Rule of Law field. It is certainly worth considering whether the ROL field has its own ideology, perhaps closely linked to so-called-developmentalism, on how things should be done — with the accompanying adding of just one more category (”if only you’d done X as well”) when things do not work out.

Ultimately, whether one agrees with Easterly or not (especially with his perhaps too-easy adoption of “classic” economic principles that perhaps risk reflecting an ideology of their own), one must always be cognizant of when broad-brush ideas may become more interested in perpetuating themselves rather than really dealing with the issues at hand, and of course one must always ask who benefits. In the ROL field this has been well explored, and there remains a vital and healthy debate along with some real attempts at finding location-specific solutions to problems, but sometimes one suspects certain ROL programs, especially newer ones or ones based on political agendas rather than reality, of relying too heavily on “standard” sets of norms that may approach (or be aligned with) an ideology. See, for example, the concerns expressed in a previous post here on Good Governance. 

Not that certain goals cannot be helped or inspired by an ideology (often a good thing), but when it comes to making it a practical reality, the danger is relying (or hoping based) on the ideology rather than reality, or assuming that a particular ideology or belief leads inevitably to X or Y conclusion.

This has been well-announced in the IL blog world, but it is worth repeating that there is an excellent new blog, sponsored by OSI, on the Charles Taylor trial (linked here).  It is an excellent example of the use of blogs for original/firsthand and up-to-date content. 

Continuing on governance, Robert Rotberg has an article now on Find Articles that, while it over-simplies somewhat for the purposes of argument, makes a case for a “ranking” of governance, similar to Transparency International’s Corruption Perceptions Index. 

While in theory it is a good idea, one has to be very careful.  The article gives some regard to cultural differences but it notes the universality of certain factors of governance and thus offsets cultural relatavism arguments.  One cannot so easily dismiss concerns when any ranking supposes itself to be independent or “objective.”  Certain rankings widely used are biased in many ways, and few people, especially outside the process itself, actually look to see what comprises any “ranking” and what the measurements are.  While certainly there is room to argue, and a ranking might help give a basis point, one has to be concerned with how the ranking is formed.  Certain economic rankings, for instance, are based almost exclusively on the liberal economic model of what is good for an economy.  Not to say that these cannot be useful, but rankings are inherently reductionist and, without serious input about how alternative strategies can get similar results, any ranking based solely on Western pre-fab notions will simply not comport to reality in many cases and risk being less useful when there really are governance problems that anyone would recognize. 

With Rotberg’s all-too-simply citing to Weber’s statist concept of a monopoly of violence as the main basis of “security”, I wonder if his version of rankings would at least seriously consider non-Western conceptions of the “state” and what constitutes one’s government.  The nation state is a largely Western concept, and perhaps focusing on increasing security of prefab notions of state boundaries, without considering how those were made (i.e. colonial carving up of Africa) is just a recipe for interstate conflict rather than peace.  True, the abscence of a strong state is usually a disaster.  But the presence of one that it is not welcome/does not comport to the desires of the people under it has not exaclty been beneficial either, and a focus on “security” of those states may in fact be just a support of oppression of minorities.  As has often been said, the sovereign nation state was a concept imposed upon land, and just because it suits Westerners so well does not mean other concepts are inherently bad.

One should also look critically at his other ranking categories.  Not that I necessarily disagree with Rotberg’s categories, but all too often categories are taken as given and then applied.  Forming the categories, not just ranking countries based on pre-conceived categories, is the first step.  Rotberg’s eight categories are a good place to start, but they should not be taken ”as is” — there is a lot of room within each category for interpretation and debate.  Any output is only as good as the input, and as Rule of Law practitioners know, if the people affected have a role in how a measure is made, they are far more likely to take it seriously.  Coming up with categories is hard work, and the categories can be changed based on the evidence that is found.  Just looking for a few things one has in mind is likely to miss the big picture. 

The article is right to mention that “measuring governmental performance requires measuring outcomes, and not inputs.”  The inherent problem with rankings is that they tend to focus on a limited subset of inputs to judge by, rather than taking a look at the outcomes.  They look at a few successful outcomes and assume what must be the “universal” inputs.  But governance is not a hard science, and correllation does not imply causation.  Ranking categories need to be made in an inclusive and discursive process taking, as he suggests, due regard for outcomes acheived through various means — while still upholding standards of course — or else the rankings will just be seen as another Western attempt to judge other places based on what works for us (a sometimes valid critique of the CPI — a lot of its validity depends on how one defines “corruption” — for example, should that include campaign contribution quid-pro-quos?  Politically-motivated judicial appointments?  Is it not corruption if it is technically legal, made that way by the people who stand to benefit the most?  Is slipping a customs official a gift more “corrupt” than getting a political appointment for the head of your company?  Etc.).  To be seen as universal one has to prove the objectivity and validility of the categories, not just assume others will take them for granted. And that is a burden we all too often do not meet.  If one is to go about ranking places, with potentially very negative implications for those places, one must be willing to submit one’s own categories to the test.

On a side note, the article is a good reminder to Rule of Law scholars that Rule of Law is not the #1 priority in a country.  It is, especially in conflict/post-conflict societies, security, however that is acheived.  What that means might be different to different people (a single state “monopoly of violence” may not be the only solution, especially in states with ethnic/cultural tensions), but without some sense of personal security, not much else gets accomplished no matter how many laws are made.