International Law

Whether you agree with her or not, Saskia Sassen has always written interesting things on globalization/transnationalism - often by thinking about it from unusual angles and geographies.  Her recent article on “third spaces” is no exception and should be of particular interest to international lawyers.  Earlier works, such as on the global city, should also be of interest since they crack open the divide between “national” and “international” and show how regimes and networks overlap, interact, concentrate power in new ways and have different applications — some of which we usually consider “legal” and some of which we do not.

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. 

The BBC has been following the talks called by President Bush on climate change, and has reported that Condoleezza Rice has said climate change is a real problem, and world leaders should forge a new global consensus on tackling it.

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.

Here is an interesting interview at Democratiya with Anne-Marie Slaughter, not only for her views on the current international situation and the need for a value-based foreign policy, but also for her personal anecdotes/stories.  She even has a bit of a dig against HLS, noting, “I spent a long time at Harvard Law School and I am no stranger to critical left denunciations of progress narratives”.

Harvard International Review forwarded an interesting and opinionated article on “The End of Exceptionalism in War Crimes: The International Criminal Court and America’s Credibility in the World” by David Scheffer, Richard Cooper and Juliette Voinov Kohler, strongly advocating that the US join the ICC.  It is a very internationalist/moral/human rights call, noting that “[t]he United States needs the ICC to help restore its global credibility, discipline its own decision-making, and strengthen judicial intervention against atrocity crimes.”  It also takes a broadly negative view of US international law/foreign policy of late which occassionally hurts the specific arguments as they are couched within such broad-brush strokes about the Bush administration’s various positions. 

There are more “realist” articles out there arguing that the ICC is continuing with or without the US and the US might be more effective “within” the system and noting that US systems are adequate to address war crimes violations by US leaders and soldiers so no US soldier would be before the ICC.  The article duly notes these arguments, especially that the US should be involved or lose the ability to influence changes, including during the Rome Statute review process in 2009.  But the article takes a direct stand on potential US liability, writing that “[n]o nation should ignore its duty to bring war criminals to justice or otherwise shield its own leaders or soldiers from charges of genocide, crimes against humanity, or war crimes” (emphasis added) and implying that the ICC should take cases of US actions if the US fails to prosecute. 

The article rightly notes that this will remain a hot topic, especially if the stance really is that US soldiers and leaders might ultimately be tried in such settings.  The timetable it sets up may be unrealistic, but certainly the debate will continue as 2009 approaches. 

Thank you for the forward.

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.

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. 

Just a note: Anupam Chander has been posting tidbits and articles on the Wolfowitz scandal and the speculation on who might replace him.  It is a good place to look at for a quick summary and links to sources/etc., and he will probably keep updating it as the story continues to move along.

There is plenty of news about the recent decision by the constitutional court of Turkey annulling the election a few days ago, as the BBC reports (with an ever-helpful Q&A here).  Yet another example of increasingly visible entrances by courts around the world into large-scale political debates… whether or not these are the “right” decisions (or are “bullet[s] aimed at democracy”) and whether or not this is just another route to contest and gain power.  The overall political environment remains a cause for concern.  Evidently those more familiar with the political situation in Turkey would be able to have a feel for what the decision means.

It would be an interesting study to take a look at such recent decisions around the world and see just what the decisions are actually doing and how they fit into respective spheres of power.  Are these decisions ”appropriate” challenges, attacks, or possibly ways of just hiding or delaying a process and thereby allowing an election to look more legitimate (as was possibly the case in Nigeria)?  Of course each country’s situation is different, but it would be interesting to see a survey of the different ways high court decisions in elections are made and/or used.  It seems that comparitive election law is a hot topic, with such great new material.    

Studying these decisions might help play with assumptions that more “rule of law” is better…it might not just be a question of quantity of decisions, but also substantively whether or not they are in the interest of justice or political decisions are being made via the cover of the courts and the “law” (as some have argued happened here in Bush v. Gore).  Of course only the most naive feel that the courts are not political to some extent everywhere, but there are lines and borders of restraint, and the “rule of law” is always trying to define what these are.

Today the Nigerian Supreme Court ruled that the electoral commission unlawfully excluded Atiku Abubakar, a leading opposition candidate (and Vice President), as the NYTimes and VOA describe (this blog tried to link to the actual decision, but it did not come up… if it comes up, we will try to post it).  As noted in an earlier post on Uganda, despite the real problems continuing to face many countries in Africa, there are real (and brave) legal challenges taking place all over.  Of course there may be other concerns over the overall fairness of the election, as the NYTimes notes, but increasingly it seems that the judicial bodies and lawyer groups are challenging other branches/other power, and these internal checks and challenges (as opposed to just the “usual” external critiques of election-monitoring groups) are a positive sign.   

The NYTimes has a short piece on stateless persons, who, as the article notes, tend to be poor and forgotten.  Does international law, with its almost exclusive focus on state-based principles, simply ignore these people?  Are these just an unlucky “few” who fall by the wayside, or does this hint at larger concerns about the IL system carving people up into groups based on often (though by no means exclusively) artificial “sovereigns”/states?  Is this a concern especially outside of the “established” ”Western” powers, that may not have used a state system until very recently, and for which it might still seem to not quite fit? 

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.