World Heritage Sites

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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.

“Developmentalism”

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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.

Charles Taylor Blog

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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. 

Good Governance

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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. 

 

Corporate Governance

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Just a heads up, the HLS program on Corporate Governance has a few new working papers out, definitely worth looking at.

The paper on U.S. Securities Regulation in a World of Global Exchanges, also available through SSRN, should be of particular interest to international corporate lawers/scholars and people generally interested in the globalization of securities markets (especially the phenomenon of competition among exchanges, which raises all sorts of issues).

Individualization in the ICC

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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. 

Jessup 2008

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There is still a long way to go, but the Jessup website has noted that the 2008 problem will cover “the tension between ensuring human rights and responding to acts of terrorism”.  It should be an exciting–and possibly controversial–competition.

Wolfowitz Departure

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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.

Human Rights Council Elections

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The 2007 Human Rights Council elections took place yesterday (the full votes are here).  Human Rights Watch discusses the UN General Assembly’s rejection of Belarus for a seat on the Human Rights Council and hopes that this could be a starting point for more competitive elections to the Council. 

It has always been interesting how the composition of the Council, so often filled with human rights violators of various kinds, is then used as a symbol that all human rights work by the UN is bad or hypocritical, especially when the Council repeatedly focuses on Israel and ignores others.  This is while most human rights groups acknowledge the Council as having membership issues and often focusing on political targets; but they seek to do something about it, rather than simply declaring invalid any human rights claims that the Council may make.  Perhaps more constructive views will eventually take hold, but the tension in the Council is always there between more “inclusive”/”representative” membership and having morally ”worthy” countries serving (and who decides this); as well as issues of when a flawed body may sometimes make valid statements and whether each statement should be taken on its own merit or rejected outright because of flawed membership and often-flawed priorities.  But human rights groups are right that there is little else to work with, and often chose to try and improve the body even as its legitimacy is so often (and perhaps increasingly) called into question.  If it is a lost cause is unclear.  In any event, it will be interesting to see how the new Council works and if it is capable of any much-needed change.  Perhaps the voting was a positive step, but any conclusions remain to be seen.

Compassion and IL

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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.

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