International Law

Here is a very interesting discussion by Habermas (courtesy of Continental Philosophy and found by way of Book Forum) on the status of the Kantian project of cosmopolitan law in light of the new wave of IL scholars, which he refers to as the “idealists”.  And despite the recent political setbacks of “neo-conservatives” in light of the ongoing situation in Iraq, there is a very real movement on the front of idealism in IL, including more friendly-sounding or better-packaged (but no less forceful) proclamations often still advocating an essential core of positions (that either through direct force or through “softer” institutions or some combination, the US is justified in enforcing liberal values around the world) such as the Princeton Project of Anne-Marie Slaughter et al. 

The talk is a good summary of Kant’s cosmopolitan law project and what Habermas notes as its chief innovation, namely a shift from international law as a law of states to cosmopolitan law as a law of states and individuals.

It is always interesting to hear Habermans since he speaks somewhat outside of the self-contained and self-referential IL world, which often focuses on minor differences or technicalities or, if it has “new” projects (or the re-packaging/marketing of older projects) like the Princeton Project, the underlying assumptions/worldviews/premises are not properly debated, especially under the prevailing liberal idealist backdrop (in some ways, the “conservative” positions at least have the benefit of a highly critical audience fighting them) and outside ”the box”, which is smaller than many might like to admit.  Seeing Habermans reminds one that meta-debates in IL, including whether one is really after IL or cosmopolitan law, are lacking.

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.

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. 

Prospect in the UK has an interesting article summarizing some of the oft-expressed concerns about the ICC.  Perhaps an additional concern hinted at in the article is the very nature of the ICC’s focus on individual cases of liability.

To follow-up an earlier post here (Compassion and IL)… perhaps while focusing on individual cases and stories gets more attention/fundraising in the West, and perhaps comports more with “our” sense of justice, perhaps the individual approach is precisely the kind of western view that is often criticized as being too individualistic and not taking due regard of culture or communities.  Individual stories of tragedy and violations of rights may make for more money and more PR, but do they really help solve the overarching problems?  Does it just lead to a temporary flow of aid and/or attention that is so often after-the-fact and fades as soon as an individual case or crisis is resolved?

Of course there is likely a balance somewhere, and different places are different, but perhaps there is a conflict between desires of some in the West to help, driven so often by individual stories, and the real needs of people, driven so often by large-scale concerns that often threaten whole communities.  It is interesting that some legal systems, including older systems such as the Fetha Nagast (Law of Kings) that was used in Ethiopia until the 1930s (originally compiled by an Egyptian Christian in the 13th century), and others, took very much into account community-level justice and positionality, even when it was a single case against an individual defendant.  Many of today’s legal systems remain far more focused on communities than western systems do, whether or not these systems are seen as conforming to the western view of “rights” (and often, indirectly, creating tension between domestic legal systems and international human rights treaties signed up by the countries).

And perhaps the individualized justice view is not really as all-encompassing in the West as some might think, with strong notions of social justice and resolving problems that communities face still in existence, even if the legal system tends to see people as sole individuals apart from their communities or surroundings.  Perhaps there is a tension here too between retroactive punitive justice against individuals and what a community might see as “justice” or even more so, what a community might see as the best way to resolve a problem or right a wrong. 

It is certainly an issue worth a lot of thought as Tribunals and cases proliferate, and as IL is still largely based off of “western” concepts of individual liability and responsibility, and is perhaps more even more western, by taking the ”latest” or most acceptable to the modern parties (or, more accurately, the elites) in a given treaty or customary world’s view of the law, than the law in the countries its proponents and drafters originally came from. 

This is an interesting post from the Toronto Star highlighting what many people, especially in human rights and IL fields, have known or suspected for a long time — that people’s compassion with respect to mass incidents, particularly man-made (or partially man-made) mass attrocities, is limited, and often a single story can be more poignant (and raise more money) than piles of statistics.  It is interesting to think about the implications for those seeking international action through their governments, and lends some credence to doubter arguments about how much people in a country are willing to have their governments do elsewhere, especially through international organizations, miitary intervention, or large-scale regulation (a good example is Jack Goldsmith’s regular stance on the limits of IL and its general lack of popular support, at least in the US [Goldsmith's name is also being talked about in the Comey testimony, which Balkanization is covering well... Goldsmith made a principled, and misunderstood for a long time, especially among the HLS community, stand]).  This is not to absolve those who fail to think of consequences outside of their direct experience or who can only relate to “personal” stories along a well-trodden arch and thus ignore unpleasant realities for many people (the follow-up to the “suffering individual” story is usually one of the “rescued individual”… forgetting about everyone else who was not so fortunate).  But it does help explain why stopping what any sane person would say is wrong seems so difficut.

Conversely, it is also interesting for ”law” and IL as a tool in general.  Do individual cases get more play, and seem more “groundbreaking” because of the stories behind them?  Cases (and especially the lawyers associated with them) often take on a self-importance that might outweigh their direct social impact, but the cases may have larger-reaching societal impacts because of their use as stories.  In the international arena, this might be an area to explore more, where human rights cases especially, but also rule of law, etc. cases can be framed in more personal ways, to make it about particular cases of injustice and change.  This individual’s rights are hurt in this way, this episode of corruption has a direct impact on someone’s business, etc.  Ironically, by limiting the scope of such cases, they may have more impact through a story that can be readily understood by others.  Just a thought, but perhaps IL needs some more PR about what it can do in individual cases for individual people, not just relying on general terms and the upholding of “norms.”  This seems to be working, at least somewhat, in the ECHR context.

Making cases into stories is hard though, when classic IL is “made” most often through cases between states, already distanced from people’s conceptions of daily law.  States (and corporations) may get to act like individuals on the world stage, but they are not viewed (and judged) as such in the common mind, thus perhaps giving them more leniency than they would otherwise deserve.  Coupled with the distancing effects of mass attrocities/mass victimization, and often because there are no effective ways to bring individual claims, this can make effective action particularly difficult… it becomes just some amorphous entity doing some kind of harm to some people we don’t know.

As a follow-up to the previous post, it is worth mentioning that the impact of a state-centered approach on migrants was noted by Jose Alvarez in his International Law: 50 Ways it Harms Our Lives (PDF) address to the American Society of International Law.  The address has a been a hot topic in the IL debate lately, and rightfully so, as it raises in clear language many of the pesky problems in IL and, as a whole, presents a challenge to the view that more IL is always a “good thing”.  This topic will be explored more later, but it is worth thinking about the goals of “cosmopolitanism” and the goals of IL, both in definition and how it works in the real world.  As a reference point, Kwame Anthony Appiah’s NYTimes article (and the excellent, badly-needed book it is in conjunction with) provides a good sense, and at least one definition, of the cosmopolitan “ethos”… though Appiah’s somewhat easy assumptions that there are not valid concerns on the “other side” about cultural destruction and the like (and lumping them into an almost obviously undesireable group of counter-cosmopolitans), and perhaps the somewhat elitist/priviledged view he takes of globalization and cosmopolitanism generally without fully addressing who wins and who loses, are at least topics of concern.

Though many IL scholars and practitioners (in my guess, esp. outside of the US and especially the current US gvt) may see themselves as “cosmopolitans”, does IL really advance the project?  Is it more realist than people like to think?  That might be a good or bad thing, but it is certainly something that those involved in IL have to consider.

An article in the New York Times on the biological aspects of “morality” among primates and its sampling of moral philosophers at least brings to mind the continuing debate in IL of if there is such a thing as a universal morality or “norms” for humans and what these might be.  The tendency for some to reject this idea usually favors an “amoral” approach, or simply rule by whomever has power (though even that, ultimately, relies on some concept of morality… it seems to me to be an inescapable box). 

The debate on human nature is endless (and has been oft mentioned here), but it is worth again thinking if there really is at least something universal, and, as the article suggests, it is not really every “single” creature against every “single” other that is wired into our distant past.  If there is an inherent group connection, how far can this extend?  To family, to the large community, to a nation, to the world?  What are the limits on it?  Does there need to be an “other”, a human other, or can this other be inanimate, such as the forces of death or poverty or degradation to humans everywhere?

The dissing of “human rights” or other norms as entirely culturally or socially constructed (a view shared, oddly enough, but those on the so called post-modern hyper-front usually viewed as “left” but more so as a caricature and also by the “pragmatists”/formalists who tend to be centrist/right… perhaps the divide is more modern/post-modern than anything) is a common critique, but many scholars/humans/etc. still feel there is something common there, at least some common thread of humanity.  And examples to the contrary of this or that custom are often reductionist and do not take into account that of course there is variation (and various levels of control, power structures, views, etc.).  Examples of “other cultures” that do not “share out values” often select the worst examples, ignoring that such negative examples of our “morality” could be found in any culture.  Of course everyone from human rights activists to the Bush administration have made claims of the universality of X or Y principle.  The hard part is sorting through the mess to see what is common ground and what can be used constructively to make the world a better place.   

At least this articles shows the continuing exploration from all angles of what, if anything, is truly a basis for norms.  (…Of course the morality of chimps might be socially/power imposed too.  Viva la chimp revolution!)

And of course the research on primates and other animals has ethical implications; the more we learn of the cognitive and “moral” ability of animals, the more it might suggest we have some commonality and perhaps owe something to them.

On working through some more Marcuse, one thought seemed particularly relevant to attempts in IL legal scholarship, especially in the rational choice theory/law and econ realm (but also in others), to condemn/critique that which cannot be readily quantified or fit into certain “methods” (ignoring for now that so far most attempts at quantification in the legal realm either misapply the scientific methods being cited, make large assumptions, or both).  These can be seen, in a way, not as just an attempt to add “order” or make a new argument, but as also an attempt to limit and control and knock out other arguments.  In IL this is perhaps more visible because of the “newness” of the field, or at least the newness of applying certain techniques to it.  On a general level, perhaps this helps explain why there is such a disconnect when supposedly “rational” arguments bump up against moral/other arguments and when law can sometimes come up with “conclusions” that defy our (putting aside who “our” represents… at least for now… which remains a key critique) moral instincts.  Marcuse cites Bridgman as follows:

“To adopt the operational point of view involves much more than a mere restriction of the sense in which we understand ’concept,’ but means a far-reaching change in all our habits of thought, in that we shall no longer permit ourselves to use as tools in our thinking concepts of which we cannot give an adequate account in terms of operations.”  (in Herbert Marcuse, One-Dimensional Man, Beacon Press, Boston, 1964, available online, citing P.W. Bridgman, The Logic of Modern Physics, loc. cit., p. 31)

Marcuse goes on to say this has happened outside the sciences, in that the “radical empiricist onslaught” provides the “methodological justification for the debunking of the mind by the intellectuals — a positivism which, in its denial of the transcending elements of Reason, forms the academic counterpart of the socially required behavior.”  (id.)  Thus, fitting with his overall theme about society, academic debate is also rendered limited and “one-dimensional” or, at least as one might see in IL, within a very narrow range, and this self-perpetuates based on justifications and methods of argument that tend to support the prevailing system.  

Of course, if this is true, this limits discourse on all sides or at least rendering some arguments, from the “right” or “left” seemingly out of synch.  And maybe this is a necessary thing, to provide order and stability, and law has just not “gotten it” yet.  But it does make some sense that when a certain order is structuring not only particular outcomes, but also the rules to get to those outcomes, this limits the range of outcomes overall.  In academics, perhaps it is as the recently late Baudrillard suggested, that modern academic debate is basically weak and cowardly, not bringing up key issues, truly new arguments, etc. (which this blog can certainly be accused of, generally taking a more centrist tone).  If anything, the “new” arguments have probably come from the right rather than anywhere else, or at least the ones from the right have been booming in recent years (perhaps because they are supporting prevailing/growing power structures?), perhaps to decline as certain ideas are debunked in practice, while the anti-academic/intellectual movements have been more successful at shouting down any new (or old) ideas from other angles.

No matter what one thinks of Baudrillard’s more provocative ideas, he probably has a point about the academic debate overall, perhaps in part because of what Marcuse was saying?  In some ways perhaps the shouting and hollering about “intellectuals”, baring any kind of complete crack-down/book-burning/wave of intolerance, actually will help the debate, since it forces actors to take stances and brings out the debate when perhaps the previous waves of limits on debate, those Marcuse is getting at, were (and are) in some ways less direct but more pervasive?

For anyone interested in a great many subjects, MIT’s attempt to put almost its entire curriculum online for free is a wonderful thing.  For lawyers looking elsewhere for insights, inspiration, etc. (with all of the caveats about dilettantism), the cite is a great resource.  Though obviously geared (mostly) toward the undergrad level, for IL-types in particular it provides multiple ways of brushing up on those IR theories, and the somewhat self-importantly labelled “New” “New Haven School” scholars will have more to feed on.  For practicing attorneys, perhaps a refresher on other aspects of life might do us good! 

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.