With respect to formal law and regulation, it is worth thinking about her arguments that “[a] fresh type of segmentation is occurring inside the state apparatus, characterised by a growing and increasingly privatised executive branch of government aligned with specific global actors (notwithstanding nationalist speeches), alongside a hollowing out of the legislature whose effectiveness is at risk of becoming confined to fewer – and more domestic – matters.”  This decline of legislative power (and the privatization of government) is a big issue for domestic law in the US, with extensive “executive power” debates (small examples include this recent NYTimes article here and a Boston Globe article on the presidential candidates here – though many have argued that this increase was a trend under Bill Clinton as well), all too often without considering whether or not this is happening with respect to more “international” issues, whether increased power and privatization are linked, whether this is happening elsewhere in the world and if there is something larger to be considered.  And this should all be considered beyond the hot-button issues of the war on terror and include executive power in economic matters as well.

This also fits in nicely with notions of transnational regimes for economic policy-making (run by “experts”… “elites” might also be appropriate… perhaps these experts are more at ease in executive branches than in legislative… or are more able to get what they want?) per David Kennedy’s work.  Alas, the wonderful former HLS/Fletcher prof and student is now at Brown as VP for international affairs and a prof of international relations.  Congratulations to him, but surely a loss for HLS. 

This is obviously an interesting take, and pokes holes at some of the main realist histories which have taken on a sort of “truth” through sheer repetition.  It is interesting to note though that this article focuses almost exclusively jus in bello (laws of war — how it is engaged in), and there is little mention of jus ad bellum (”Just War Theory”…laws of when wars can be engaged, etc.).  Some scholars, though no means all, are willing to give more of a pass to jus in bello (that things such as the Geneva Conventions are generally binding — note it is a very different question than which particular rules under the Geneva Conventions might be binding in any given situation) as more binding international law than jus ad bellum (such as arguments that the US war in Iraq is legal or illegal).  Was there any Greek thought on jus ad bellum?  On what might or might not be valid reasons to engage or not engage in war?

This is all the more interesting as the Melian dialogue is often used by realists in arguments about jus ad bellum more than jus in bello.  After all, the Melians are basically arguing that their neutrality should be respected under international law.  Athens goes with a “might makes right” approach… “you know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must” (translated differently, and almost certainly more accurately, in Lanni’s article, but the sentiment is the same).  Therefore the Melians should pay tribute or be destroyed.  This is far more a question of what is a Just War and whether the Athenians can “legally” or justly/rightly attack the Melians at all, rather than a question of the actual conduct of the war once it is decided upon.  

On a separate note, it is also interesting to think how this might tie into later Western notions of laws of war, largely based on Judeo-Christian heritage and thus sometimes dismissed for being simply appeals to a higher power that have no independent or “legal” binding.  But if the Greeks also felt they were restricted in some way, perhaps others did too.  Is this just a question of what any “culture”’s views of such laws might be?  Some authors have pointed to everything from Sun Tzu suggesting limits on the way that wars were conducted, the concept of war crimes in the Hindu code of Manu, the 1305 trial of Sir William Wallace, through Grotius and onwards.  Is it worth looking to see if there are any shared values, no matter their source?  Is this something to work from, at least for jus in bello?  But the Greek values seem different than those classic Western jus in bello ones…  and perhaps many of those were because they were all part of the larger Greek culture (i.e. did the rules apply when Greeks fought non-Greek civilizations?  Could they destroy their temples and/or fight during their religious holidays?  My guess is ‘yes’, but I don’t know)? 

Lots to think about, in any event.

In any event, hopefully re-workings of concepts such as this will help break up some of the camps up in IL scholarship, which so often seem to be overly-simplified versions of IR camps.

One might of course be skeptical of Bush’s motives (whether this is purely a political play) and one awaits the probably inevitable focus on voluntary and/or cosmetic cuts or market-based measures. But perhaps this at least shows that some in the US are starting to realize that at least being a part of the negotiation, or perhaps starting a separate set of negotiations in which one frames the debate, may be a more viable way of interacting with areas of burgeoning international law (and increasing domestic pressure), such as climate change. One thing for IL scholars who might not like some of the US or any other major power’s positions but constantly call for more international legal engagement by those same powers, is to be careful what you wish for. Simply having “more” engagement by governments does not mean they will take the positions one hopes for or even use the same forums (as Bush’s sidestepping clearly shows) and in some ways perhaps international regimes (such as the ICC, Kyoto, etc.) were actually “helped” by being largely dismissed by the US. Other regimes in which major countries opt out may also have been helped. While IL scholars or especially advocates for various causes (human rights, environment, indigenous rights, etc.) often call for immediate worldwide adoption of various principles, sometimes having smaller venues helps to develop more organized and internally consistent regimes, some supporting cases, some domestic legislation, etc. to the stage in which major powers are forced to get involved or “miss the boat”.  But of course without such public and worldwide calls, perhaps the regimes would remain permanently marginal. 

In any event, the interplay between “involvement” by major powers in IL and whether this is “good” or “bad” for one’s cause is not as simple as it first appears.

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.

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. 

This case is part of an ongoing dispute between Kagame’s government in Rwanda and France on the responsibility for complex events surrounding the genocide (and at least in part for the genocide itself).  A taste of this debate, which included Rwanda’s cutting of diplomatic ties with France, can be found in this Telegraph article and an IWPR post. 

It should be interesting to see how France reponds.

Of course there has been some IL attempting to deal with stateless persons, including through the UN Convention relating to the status of stateless persons, and the UN Convention on the reduction of statelessness (PDF), though neither has been universally ratified (and here) (both PDF) by any means, which perhaps in part shows the reluctance or inability of states to fully address this issue.  The UNHCR discusses the issue as well.  And as states come and go, and if nationality or ethnically-based states continue to proliferate (sometimes referred to as ”Balkanization” but now often thought of as a possible future scenario in Iraq), the problems for those excluded by the defined states will likely continue.   Unfortunately there seems to be little will in the IL community to address these problems and, almost by definition, these stateless persons lack the means of creating a meaningful political voice.